1. This is a branch of the litigation arising over the administration of the assets of the Empire Lumber Company, which resulted in bringing many cases to this court. Among the parties to the original petition for a receiver were a large number of manual laborers who had been employed as such in and about the running of the mill and its^machinery, and who set up their liens and insisted upon the priority of the same. All the facts necessary to the validity and enforcement of their liens were admitted, and their claims were allowed by the master except as to certain amounts represented by drafts which had been given to some of the laborers by the lumber company in settlement of their wages. These drafts were indorsed by the laborers respectively holding them, to Lupo Bros, and others, for collection, or for the purpose of borrowing money on them. The parties to whom the drafts were indorsed did advance and loan money on them to the laborers, and forwarded the same for collection, but payment of them was refused and they were returned. They were afterwards, but before the beginning of this litigation, redelivered to the original payees, who are held responsible to the parties to whom they had indorsed the drafts for the amounts advanced upon them. These laborers, having the possession and control of the drafts, offered to surrender them to the court, and had full authority so to do.
Under these circumstances, we think the master erred in disallowing so much of these liens as were represented by the drafts referred to. The mere receipt by a laborer of a promissory note from his debtor will not waive the right of lien. In Ford v. Wilson & Co., 85 Ga. 109, this court held that no implied waiver of a material man’s statutory lien resulted from the acceptance of the promissory note of a third person as collateral security, there, being no intimation in the statute
2. Darcy, Davis and Green, intervening creditors, claimed, under section 1985 of the code, liens against the lumber company for timber furnished by them to it and its saw-mill. The master disallowed the claims of Darcy and Davis for the reason, as stated in his report, that the evidence showed they did not own the trees from which the logs delivered by them were cut, but-simply, as contractors, cut the trees into logs and hauled the same to the mill. The finding of the master as to-the facts of this transaction was erroneous, the evidence-being conclusive and uncontradicted that these parties, did own the trees, and sold them to the company as “ standing timber,” but it does not appear that these parties cut the trees into logs and delivered them to the mill. The claim of Green was disallowed for another reason, which it is unnecessary to state. The claims of all three of these parties ought to have been disallowed, and the master was right in so doing, although he may not have given the proper reasons for his decisions.. The evidence shows that all these claimants sold to the lumber company standing ti’ees as they grew in the-
Counsel for defendants in error, in open court, expressed their consent to a reversal of so much of the judgment of the court below as approved the report of' the master disallowing these claims. This consent was based upon the erroneous finding of fact by the master-above indicated. Having shown, however, that these parties, under the facts as they actually appear, are not entitled to a lien, a sufficient reason is thus presented for declining to reverse the judgment in this respect, even were it otherwise proper to do so upon the mere consent of counsel.
H. & C. Erskine and J. E. and M. D. Price claimed a lien for logs furnished by them to the lumber company. The proof shows that the company owned lumber trees, standing in the woods, and that these parties, as contractors, cut down the timber and hauled and delivered the logs to the mill. Section 1985 of the code contemplates that persons furnishing saw-mills with timber, logs, etc., shall own the material furnished. Certainly, logs which already belong to the owners of a mill were not included nor intended to be included in the provisions of this section. It is difficult to conceive how a corporation can be furnished with a thing which already belongs to it. The contractors furnished the labor necessary to convert the standing trees into logs suitable for the purposes of the company’s business, but in no sense can they be said to have furnished the logs themselves. The master was therefore right in disallowing the claim of lien of the parties last mentioned, and the court properly sustained his action in so doing.
The Atlanta Rubber Company, and a number of other creditors, claimed liens for such articles, and others of similar character, as are designated in paragraph (6) of the second head-note. Their contention was that these
The Standard Oil Company claimed a lien for oil furnished to the lumber company. We think oil for lubricating purposes could be properly included in the same class as that to which timber, logs and provisions belong, it being an article at once consumed in its use. It does not affirmatively appear, however, that the Standard Oil Company, either by affidavit or by intervention, commenced proceedings to enforce its lien for the oil furnished within twelve months after the debt, so far as chargeable upon the property now in question, became due. This company furnished oil to the defendant corporation at its mills at Empire, Ga., and also at Sedden, Ala., and although the amount due for the oil furnished at the mills in this State is shown, it is impossible to ascertain definitely from the evidence when this amount became due, or that it had not been due for more than one year before a proceeding of any kind to foreclose the lien was instituted.