#### A. & N. W. R. R. CO. v. N. H. MAYS.

IN THE SUPREME COURT,

AUSTIN TERM, 1884.

*Lien*— Sub-Contractor.—A person occupying the position of sub-contractor, is not entitled to the lien given by the act of February 18,1879.

*Wages*— Definition *of.*— The usual meaning of tire word “wages” is compensation given to a hired person for his services.

Appeal from Travis county.

Robertson & Williams, for appellant.

John Dowell, for appellee.

Watts, J.:

The court erred in overruling appellant’s exceptions to the allegations in the petition, wherein it was sought to assert a lien upon the railroad and equipments. The act regulating and *296giving liens to laborers on railroads, approved February 18, 1879, provides “That all mechanics, laborers and operatives, who may have performed labor in the construction or repair of any railroad, locomotive, car or other equipment to a railroad; or who may have performed labor in the operation of a railroad, and to whom wages are due and owing, shall hereafter have a lien prior to all others upon such railroad and equipments for such wages as are unpaid.” “In all suits for wages due by a railroad company for such labor as heretofore mentioned, upon proof being made that such labor had been performed, either at the instance of said company, a contractor or sub-contractor or agent of said company, and that such wages are due, and the lien given by this act is sought to be enforced, it shall • be the duty of the court, having jurisdiction to try the same, to render judgment for the amount of wages found to be due, and to adjudge and order said railroad and equipments, or so much thereof as may be necessary, to be sold to satisfy said judgment,” etc. (R. S. App. p. 4).

The case made by the petition so far as the lien asserted against appellant; was that appellee as a sub-contractor furnished cross-ties upon a contract between him and the contractors, Sanford & Son, at a certain agreed price per tie — claiming that the balance due on that contract does not amount to the value of his own labor expended in furnishing the ties, and that as he had labored personally in cutting and shaping the ties, and in placing them upon the right-of-way, that therefore he was entitled to the benefit of the statutory lien.

It will be observed that the lien is given only when wages are due, for labor done at the instance of the company, contractor or sub-contractor. The usual signification of the word “wages” is compensation given to hired persons for labor performed. Can it be correctly said that appellee performed the labor for which he sues to recover, and to secure which he asserts the lien, as a hired person ? It is thought not. In the performance of the labor he was neither subject to the direction of the company, nor the contractors, Sanford & Son. He was an independent sab-contractor, having full discretion and direction in respect to the matter. The amount as claimed to be due and owing to him was as contractor, and not as laborer. It is a claim for supplying.material under a contract and not wages for services as a hired hand, and the fact that he may have expended his personal labor in complying with his contract, will not *297change his position from that of contractor to that of laborer. For a full and clear discussion and construction of the act under consideration, see R. R. Co. v. Allen et al., W. & W. Con. Rep. 568.

In our opinion the case as presented by the petition, did not entitle appellee to the benefit of the statutory lien, and that the court erred in overruling appellant’s exceptions to that portion of the petition. The judgment ought to be reversed and remanded.