#### Glover, Respondent, vs. Hynes Lumber Company and others, Appellants.

*November 6*

*November 24, 1896.*

*Liens: Logs and lumber: Evidence.*

In an action under ch. 139, Laws of 1891 (giving a lien upon manufactured lumber to any person who has performed labor in manufacturing the .same), where the plaintiff was employed in con-*458struoting permanent improvements to the mill and also in superintending its general operations, he cannot recover without showing how much of his time and labor were spent in manufacturing the lumber in question.

Appeal from a judgment of the circuit court for Bayfield county: John- *K.*Paeish, Circuit Judge.

*Reversed.*

This is an action to enforce a laborer’s lien upon a quantity of manufactured lumber, under ch. 139, Laws of 1891, which, among other provisions, gives a lien upon manufactured lumber to any person who has performed labor in manufacturing the same. It appears that the lumber in question was manufactured at the mill of the defendant the *Hynes Lumber Company,*and was the property of the remaining defendants. It further appears that the plaintiff was employed by the *Hynes Lumber Company,*for more than a month before the mill started, in superintending the building of an addition to the mill and putting in the machinery ; that, after the mill started and the sawing- of the lumber in question was begun, he continued to superintend the putting in of hew machinery and the making of permanent improvements to the mill, and at the same time superintended the keeping of the mill and machinery in repair when breakages occurred. The plaintiff -was unable to state what share of his time was spent bn the repairs and what .-share upon permanent improvements, though directly asked the question, and no other witness attempted to answer the question. The court charged the jury, in substance, that the plaintiff was entitled to a lien for any sum due for general superintendence of the mill while the lumber was in course of manufacture, and for his services in superintending repairs, but not for labor performed, in rebuilding the mill or making permanent improvements thereon. Under these instructions the jury found the entire amount due the plaintiff for services was $813.84, and that of that sum $713.30 was due for labor in manufacturing the lumber in question, *459•and was a lien thereon. Upon this verdict judgment was rendered against the *Hynes Lumber Company*for the full ■amount due the plaintiff, and adjudging a lien upon the lumber for $713.30 and costs. From the judgment of lien the •defendants appealed.

. For the appellants *Hamilton*and *8. K. Martin Lumber •Co.*there was a brief by *Gleason <& Sleight*and *Tomkins &*Merrill, and oral argument by *W. M. Tomkins.*

For the respondent there was a brief by *Sanborn, Dufur’ •(&*O'Keefe, and oral argument by *A. W. Sanborn.*

WiNslow, J.

It is evident that the jury had no testimony before them from which they could determine how much of the plaintiff’s time and labor were spent in manufacturing the lumber in question. At best it could be but a mere guess. The statute gives a lien only for the labor and services performed in manufacturing the lumber. It is plainly the plaintiff’s duty to show the amount of such labor and services. Until he does so, he is in no position to demand a lien. He cannot leave it for the jury to speculate upon, without evidence. There must be a new trial.

*By the Court.*— Judgment reversed, and action remanded for a new trial.