#### Matzewitz, Respondent, vs. Wisconsin Central Railway Company, Appellant.

*October 28*

November *12, 1909.*

*Railroads: Liability to laborers for contractors: Notice of claim, upon whom served: Assignment of claim: Real party in interest.*

1. Sec. 1815, Stats. (1898), — providing that a laborer to whom a contractor for the construction of a railroad shall he indebted for labor performed in such construction may make the railroad company directly liable by serving notice of his claim upon “an engineer, agent or superintendent” in the employment of the • company, “having charge of that part *of the road*on which such *644labor was performed,” — does not require the notice to "be served, upon the particular employee in charge of the *construction worlc*on that part of the road; the intention being that service should be made upon an employee who would be likely promptly to bring home to the company knowledge of the existence of the claim, rather than upon one who would know whether the claim was legitimate or not.

2. Delivery by the laborer of his time check to another person for collection, writing his name on the back thereof as evidence of the authority, and borrowing a small sum from such person on the claim, did not constitute such a transfer of title as took the claim out of the protection of the statute.

3. The creation of such a mere agency, though coupled with an interest, to collect the claim for the benefit of the laborer, did not make the agent the real party in interest who must be plaintiff in an action to enforce the claim.

'Appeal from a judgment of the circuit court for Ashland county: John E. Papish, Circuit *Judge.*

*Affirmed.*

Action to enforce a laborer’s claim under sec. 1815, Stats. (1898).

The issues raised by the pleadings were closed by these conclusions : In 1901 the defendant was engaged in railroad construction in Douglas county, Wisconsin, under a principal contractor, one Balch, and his subcontractor, Philbrook. The duties of the latter were, in part, to look after the camps, hire and discharge men, keep their accounts, board them, direct them as to their work, and give statements of the amounts due for their work in excess of offsets. Prior to August 8, 1907, Balch employed plaintiff to work constructing the road at $2 per day, pursuant to which the latter did nineteen and one-half days’ grading work between stations 562 .and 604. The work commenced August 8 and lasted, continuously, till August 29, 1907. The amount due and unpaid therefor is $25.73. At the termination of the work, plaintiff was given by Philbrook, in his representative capacity, a statement of his time, specifying the wages per day, part of the road on which his labor was performed, balance due over all offsets, and the time when such balance was payable, the due date being *645September 29, 1907.. August 30, 1907, plaintiff employed one Sever to collect bis claim. To facilitate tbe collection, and for no other purpose, plaintiff wrote bis name upon tbe ■back of bis statement, and delivered it to Sever, tbe latter loaning thereon $5.73, under an agreement for repayment ■out of tbe proceeds of tbe collection. Within thirty days after tbe due date of tbe claim, plaintiff, by bis attorney, served defendant with a notice in writing, signed by such attorney, stating tbe facts aforesaid and claiming tbe benefit of sec. 1815, Stats. (1898). Tbe notice was served on one Gillis, who was then, and when tbe work was done, tbe agent, engineer, and superintendent of tbe road in charge of that part upon which tbe work was done. He was a proper person upon whom to make tbe service and be, promptly, sent tbe notice to bis principal at its headquarters; Tbe service was within tbe thirty days after tbe due date of tbe claim, and suit was commenced within sixty days after tbe service.

On such facts, judgment was ordered in plaintiff’s fayor and was rendered accordingly.

Eor tbe appellant there was a brief by *Luse, Powell & Luse,*and oral argument by *L. K. Luse.*

They contended, *inter alia,*that tbe assignment by plaintiff of bis claim destroyed bis right .to a lien. *Hickok v. Laubssier,*1 Morris ■(Iowa) 115; *Weirick v. Mahoning Go. Bank,*16 Ohio St. 297; *Seymour v. Van Slyck,*8 Wend. 403, 422; *Ford v. Mitchell,*15 Wis. 304, 308; 4 Cyc. 44; *Chapman v. Plwmr mer,*36 Wis. 262, 265 ; *Wooliscroft v. Norton,*15 Wis. 198; *'Tewksbury v. Bronson,*48 Wis. 581; *Shearer v. Browne,*102 Wis. 585, 587; *Fraker v. Peeve,*36 Wis. 85; *Gum/mings v. Morris,*25 U. Yl 625; *Chase v. Lodge,*11 Wis. 70, 72. Tbe assignment must be construed to be at least an assignment to secure Sever for bis payment of $5.73, and that be was to collect and receive tbe whole claim. Tbe bolder of a chose in action as collateral security is tbe real party in interest and must bring tbe action, and tbe assignor for security may not. *646
      *Hilton v. Waring,*7 Wis. 492; *Curtis v. Mohr,*18 Wis. 615 ; *Morgan v. South Milwaukee L. V. Co.*97 Wist 275, 277. And this rule applies as well to nonnegotiable instruments as to negotiable. *Archibald v. Mut. L. Ins. Co.*38 Wis. 542.

Eor the respondent the cause was submitted on the brief of *D. E. Roberts*and *Michael 8. Bright,*attorneys, and *Walter 8. Whiton,*of counsel.

Maeshall, J.

Was tlie person upon whom the notice was served the defendant’s engineer, agent, or superintendent, in its employment, having charge of that part of the road on which the labor was performed ? It is contended for appellant, that the finding in the affirmative is contrary to the clear preponderance of the evidence, because the statute contemplates that the person upon whom service is required to be made shall be the particular employee, in such charge of. the work as to be likely to know the facts in regard to the claim.

We can see no good reason for restricting the plain meaning of the statute by construction. It means, doubtless, just what the ordinary sense of the words signifies. The person upon whom the service must be made, in any such case, is the one who, as engineer, agent, or superintendent for the railroad company, has charge of that *part of the road*on which the labor was performed. It is the one who has such general charge, whatever may be his designation.

Had the legislature intended the service to be made upon the employee in the immediate charge of the construction work, it would have said, in charge of the work instead of *"of the road.”*The purpose, doubtless', was to require the service to be made upon an employee of such grade as to be likely to promptly bring home to the corporation knowledge of the existence of the claim, rather than upon one sufficiently in touch with the particular work as to know whether the claim was legitimate or not. Such purpose was not, merely, to enable the .particular person, primarily receiving the notice, to report *647tbe facts, but to reach the corporation and give it reasonable opportunity to protect itself against a double liability which would result by paying the contractor and then having to pay over again to the laborer.

That the person upon whom the notice was served in this case had general authority over that part of the road contemplated by the statute, requisite to competency to receive the service, is amply shown by the evidence.

The claim that the statute should be construed as requiring a notice to be served on the person in the immediate charge “of the construction” of that part of thp road in regard to which the labor was performed, when it relates to such construction wort, is effectually negatived by the fact that, whereas, formerly, for a long period of time, service, in such cases, was required to be made on the person “in charge of the construction work,” the statute was changed to its present form so as to require it to be made on the person “in charge of that part of the road” on which the labor was performed, thus pointing to a person higher up in grade than the one in the immediate charge of construction work.

It is considered that the circumstances, amply shown by the evidence, that the plaintiff merely delivered his claim to a person for collection, writing his name on the back thereof as evidence of the authority, and borrowing a small sum on such claim, warranted the conclusion that there was no parting with the title so as to take the claim out of the protection of the statute, under the doctrine of *Fraker v. Reeve,*36 Wis. 85, and similar authorities, to the effect that the special statutory provisions for the protection of creditors in particular cases, such as this, do not follow the creditor right into the hands of a purchaser. That does not apply where there is no parting with title to the right by the original creditor, but only the creation of a mere agency, coupled with an interest, to enforce such right, in general, for the benefit of the creditor, as held in *Bernhardt v.*Rice, 98 Wis. 578, 74 N. W.*648*370.*Tbe logic of tbat case is tbat a transfer of a claim wbicb does not pass tbe beneficial interest is not a sale and ■so is not an attempt to transfer a lien or a claim witb a lien incident.

True, a statutory liep. incident to a contractual claim, unless made so by tbe statute, is not transitory in tbe sense of Being assignable, but, so long as there is no transition of tbe beneficial interest, there is no severance from tbe claim, or loss, of tbe lien incident.

Counsel refer to the rale tbat be who takes tbe title to a nbose in action as security bolds tbe legal title and, ordinarily, in judicial proceedings to enforce it, is tbe person who must be tbe plaintiff as the real party in interest; but we must distinguish between a transfer of title carrying tbe beneficial interest, primarily, though secondarily operating to discharge a debt of tbe vendor, as in *Fraker v. Reeve, supra,*and tbe mere creation of an agency to collect and apply or account for tbe proceeds, as in *Bernhardt v. Rice, supra,*and this case.

*By the Court.*— Judgment affirmed.