Crocker v. Currier

• Decision Date: 06 April 1886
• Citation: 65 Wis. 662,27 N.W. 825
• Parties: CROCKER AND ANOTHER v. CURRIER.
• Court: Wisconsin Supreme Court

65 Wis. 662

27 N.W. 825

CROCKER AND ANOTHER

v.CURRIER.

Supreme Court of Wisconsin.

Filed April 6, 1886.

Appeal from circuit court, Clark county.

Appeal by the defendant from a judgment against him, in an action to enforce a statutory lien for the price of materials furnished and labor performed by the plaintiffs in the erection of a dwelling-house for the defendant. No question is raised on the pleadings. The cause being at issue, the same was referred by the court to a referee to hear, try, and determine. A trial was had before such referee, who thereafter reported his findings of fact and conclusions of law to the court. Such findings being in favor of the plaintiffs, the defendant moved the court to set aside and dismiss the report, and the plaintiffs moved for judgment upon it. The court denied the motion of the defendant, and granted that of the plaintiffs, at the same time overruling the exceptions of defendant to the report, and confirming the same. The order in this behalf was made at a special term of the court commencing September 17, 1883. Judgment was rendered by the court, pursuant to such order, March 2, 1885. The costs were taxed September 24, 1885, and on the following day the court, on appeal, affirmed the taxation, and ordered the amount thereof to be inserted in the judgment, which was accordingly done.

The findings of fact by the referee which were thus confirmed by the court are, briefly, as follows: (1) The plaintiffs were partners as alleged in the complaint. (2) Between May 3, 1881, and October 13, 1882, the plaintiffs, as such copartners, and as principal contractors, sold and delivered to the defendant goods, wares, and merchandise, and performed work and labor for him to the amount and value of $426.48, upon which the defendant has paid $183.43, leaving a balance due thereon of $243.05. Interest on such balance from October 28, 1882, (when the action was commenced,) to July 28, 1883, the date of the report, is allowed at $12.76, making in all $255.81 due the plaintiffs, and unpaid. Of the above account $3.78 is for articles not used in the erection and construction of the dwelling-house. (3) All the remaining items of the account allowed were used in and about the construction of a certain frame dwelling-house situated upon the real estate described in the complaint. The last item in such account accrued October 13, 1882. (4) At the date of the first charge for material used in such house, June 25, 1881, the defendant had an interest in the lands upon which the house was erected. (5) A sufficient petition for a lien upon the premises described in the complaint, for the amount unpaid for such materials and labor, was duly filed by the plaintiffs, in the proper office, on October 23, 1882. (6) “If any contract to build the frame dwelling-house mentioned in the complaint was made between the defendant, John Currier, and the witness Samuel Calway for $1,600, or any other entire sum, as the evidence tends to prove the fact, the nature of such contract was kept secret as to the plaintiffs in this action, and they had no notice or information thereof.” The conclusions of law are that plaintiffs are entitled to judgment against the defendant for $255.81, and are entitled to have the amount thereof, less $3.78, “declared a lien upon all the right, title, and interest which the defendant, John Currier, had on the twenty-fifth day of June, A. D. 1881, or has since acquired, in and to the premises described in the complaint, and upon which said dwelling-house is situated, not exceeding one acre in area, and said interest sold to satisfy such lien and costs.”R. F. Kountz, R. J. MacBride, and M. C. Ring, for respondents, Elliot E. Crocker and another.

James O'Neill and B. F. French, for appellant, John Currier.

LYON, J.

1. A question of practice will first be disposed of. On motion of defendant the court sent the case to a referee to hear, try, and determine the issues therein. The order of reference recites that this was done with the consent of both parties given in open court. It is not denied that such consent was given. On the hearing before the referee, however, both parties claimed that the case was not referable under the statute, and that the referee had no jurisdiction to hear, try, and determine the issues. The point is not well taken for two reasons: (1) Any issue in any action may be referred if the parties consent thereto, and in this case they did so consent, and are bound thereby. (2) The trial of the issues herein required the examination of a long account, and the court had power, without such consent, to send such issues to a referee to hear and decide them. Rev. St. 761, sec. 2864 and § 1. There are over 100 items in the disputed account.

2. It is not seriously questioned that the plaintiffs furnished the materials for and did the work upon the defendant's house, for which they claim to recover in this action, and that the referee found the true balance therefor remaining unpaid. But the defendant claimed that he let the contract to one Calway to furnish the materials for and to erect the house for a specified sum, which the defendant paid him in full; and that the materials and work of the plaintiffs were furnished to and performed for Calway, and not the defendant. On the other hand, it was claimed that Calway was employed at a stipulated price per day to superintend the erection of the house, and did not contract to furnish any materials therefor. This was the question to which the testimony given upon the trial was chiefly directed, and such testimony is very conflicting. Probably it is sufficient to support a finding either way.

It is correctly said that the referee failed to find what the contract was. This omission is assigned as error. We do not think a finding on that question is essential to a recovery by the plaintiffs. It is found that the materials were sold and deliverd to the defendant by the plaintiffs, as principal contractors, and the work peformed for him, and that, whatever contract may have existed between the latter and Calway, the plaintiffs knew nothing of it. These findings are well sustained by the evidence, and by reason of the facts so found it is immaterial what were the terms of the contract between defendant and Calway.

3. The finding that on June 25, 1881, the defendant had an interest in the lot upon...