Northern Ohio Gas Appliance Co. v. Hallett

The sole question in this cause is whether an attachment will lie on the ground that the claim is for work and labor when it appears that the attaching creditor’s claim is for commissions *628under an arrangement whereby he was to be allowed a certain percentage on sales made by him, but had no employment requiring him to devote any part of his time to the business of making sales.

We see no reason why an attachment should not be allowed in such cases; the work performed in making the sales on which the commission was claimed need not be compensated by fixed wages in order that the claimant may have an attachment. Such was the ruling in the case of Lewis v. Dawson, 3 Circ. Dec. 436 (6 R. 243), where a manufacturer’s agent employed on a salary of $20 per month and five per cent on all sales made by him, was held to be entitled to a preference as to his claims under S >e '3206a Rev. St. (Secs. 8389 G. C. et seq.), providing that laborers ■and employes shall first be paid when their employer becomes insolvent, and an assignee, receiver or trustee is appointed to administer his estate.

So the federal courts have held that one who works by the piece is entitled to priority under the bankruptcy act which provides that “wages” due workmen for services, earned within three months before proceedings in bankruptcy, shall be paid first. ■ Gurewitz, In re, 121 Fed. 982.

It is generally conceded that if an architect also superintends the construction of a building, and the drawing of plans and superintendence are both parts of one contract, he may have a lien to secure him both for his superintendence and the preparation of plans. Treadway & Marlatt, Mechanics’ Lien Law, Sec. 35, and cases cited. It will be remembered that architects are usually compensated for their services on a percentage basis.

The mechanic’s lien law is for the benefit of those who perform work or labor.

The analogy of the case at bar to the cases cited is apparent enough to justify the conclusion that the same rule should be applied in all of them upon the contention here involved.

Judgment affirmed.