Barker & Stewart Lumber Co. v. Marathon Paper Mills Co.

• Decision Date: 05 April 1911
• Citation: 146 Wis. 12,130 N.W. 866
• Court: Wisconsin Supreme Court
• Parties: BARKER & STEWART LUMBER CO. ET AL. v. MARATHON PAPER MILLS CO.

146 Wis. 12

130 N.W. 866

BARKER & STEWART LUMBER CO. ET AL.

v.MARATHON PAPER MILLS CO.

Supreme Court of Wisconsin.

April 5, 1911.

Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.

Action by the Barker & Stewart Lumber Company and another against the Marathon Paper Mills Company to enforce a mechanic's lien. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This is a mechanic's lien action brought by materialmen to enforce liens upon the defendant's concrete dam in the Wisconsin river, for materials consisting of lumber, timber, and hardware sold by them to one Painter, the principal contractor, and which the plaintiffs claim were furnished for, in, and about the erection and construction of the dam within the meaning of the mechanic's lien statute.

The facts were not substantially in dispute. On May 3, 1909, one George M. Painter contracted with the defendant company to build the dam in question and to furnish all materials, tools, labor, appliances, and appurtenances necessary for the doing of the work, including the clearing of the site, excavation, pumping, cofferdams, etc., necessary to keep the site of the foundations dry, etc. Painter carried the work on for several months, but abandoned it without excuse in October, 1909, at a time when nothing was due him. He had at that time constructed a large and expensive cofferdam surrounding the site of the permanent dam and had commenced the construction of the latter. The cofferdam was constructed by driving two parallel rows of piling in the bed of the river and bolting on the inner sides of these piles sections of planking 9 inches in thickness and 24 inches wide; each such section being formed by bolting together three three-inch hardwood planks, the center plank being set in about half the width of the planks so as to make a tongue and groove formation, and the space between the walls thus made being filled with sand and gravel. The plaintiff Barker & Stewart Lumber Company furnished Painter the following materials used in building the cofferdam, viz.: Three-inch planks, at $16.00 per M feet, $4,602.57; unsawed piling timbers, $935.30; 15,000 feet one-inch hemlock, $112.50--making a total of $5,650.37. The same plaintiff also furnished a quantity of hemlock lumber which was used in making forms for the concrete work in the flumes of the permanent dam, amounting to $397.73, making a total of material for which they claim a lien of $6,048.10. The plaintiff Marshall-Wells Hardware Company furnished Painter soft steel, bolts, nuts, and washers which were used in the construction of the cofferdam to the amount of $715.49, and advanced and paid the freight on said materials from Duluth to the amount of $72.81, making in the aggregate $788.30. When Painter abandoned the contract, the defendant took possession of the site and completed the work, using for that purpose the material which Painter left upon the ground, including the material in the cofferdam,as it was authorized by the contract to do in that event. As to the lumber and timber which went into the dam, the court found as follows: “The piling material has all of it been substantially destroyed by such use. A major portion of the planks were afterwards removed in sections, and when so removed could have been used in the construction of some other similar cofferdam, and the lumber had at the time of removal a market value of from $4 to $5 per thousand feet. It has since removal been used by the Marathon Paper Mills Company for tramways and planking in the carrying out of said contract, and at the completion of such use has no other value than for firewood.”

Upon these facts the trial court found that the materials furnished by both plaintiffs were furnished for, in, and about the construction and erection of the dam and entered judgment of foreclosure of mechanics' liens therefor, and the defendant appeals.

Brown, Pradt & Genrich, for appellant.

Kreutzer, Bird, Rosenberry & Okoneski, for respondents.

WINSLOW, C. J. (after stating the facts as above).

Our statute (section 3314, Stats. 1898) gives a mechanic's lien to every principal contractor who furnishes materials “for or in or about the erection, construction, repair, etc.,” of any structure which becomes part of the freehold; by another section (section 3315, Stats. 1898) under certain circumstances a like lien is given to a materialman who furnishes any materials to the principal contractor “in any of the cases mentioned” in section 3314. In either case, therefore, the lien is given for materials furnished “for or in or about” the erection of the structure, and the exact question here is whether the materials which went into the cofferdam were furnished for, in, or about the erection of the permanent dam. This is a new question in this state. We have been referred to no decisions in any court covering the precise point, and we readily confess that it is a question involved in more than ordinary difficulty. A decision either way could be supported by arguments fairly logical and convincing in their nature.

It will be useful at the outset to state briefly some of the general principles which this court has already laid down on the subject of mechanics' liens. The first and perhaps the most important of these is the principle that mechanic's lien statutes are remedial in their character and are to be liberally construed so as to effectuate their remedial purpose. Vilas v. McDonough Mfg. Co., 91 Wis. 607, 65 N. W. 488, 30 L. R. A. 778, 51 Am. St. Rep. 925;Kendall v. Hynes L. Co., 96 Wis. 659, 71 N. W. 1039;Winslow v. Urquhart, 39 Wis. 260. Another principle is that, if material be furnished to the owner for use in the construction of a building, and the construction be actually commenced, the materialman is entitled to his lien, even though the owner does not use the materials at all, but disposes of them elsewhere. Esslinger v. Huebner, 22 Wis. 632;Fitzgerald v. Walsh, 107 Wis. 92, 82 N. W. 717, 81 Am. St. Rep. 824;Halsey v. W. S. S. Co., 125 Wis. 311, 104 N. W. 94, 110 Am. St. Rep. 838. But if a subcontractor delivers materials to the principal contractor at the latter's place of business, which materials are neither incorporated into the structure, delivered upon the premises, nor placed under control of the owner of the structure, no lien arises, because the material cannot be said to have been furnished for, in, or about the erection of the structure. Francis & N. Co. v. King Knob C. Co., 142 Wis. 619, 126 N. W. 39. This last-named case is claimed by the appellant to decide that a subcontractor can have no lien unless the materials he furnishes are actually incorporated into the building, and there is language in the opinion which gives color to that idea; but the case itself was simply a case where the subcontractor who claimed a lien had delivered a wheel to the principal contractor at the latter's place of business in Chicago, which wheel never reached the premises or the control of the owner of the building, but went into the hands of the receiver in bankruptcy of the principal contractor in Chicago, and was sold by him to strangers. Under these circumstances, there being neither incorporation into the building, delivery upon the premises, nor control by the owner, it was held that there could be no lien. Whether there would be a lien in case there had been delivery upon the premises into the control of the owner but no incorporation into the building was not decided, although the fact was considered as significant that in previous cases it had been assumed or stated in obiter remarks that incorporation into the building was necessary in order to arouse a lien on behalf of the subcontractor. The only point actually decided, however, was that the facts of that case did not constitute a furnishing of materials which would arouse the lien.

It seems equally certain that the expressions in previous cases in this court, which are supposed to justify the idea that a subcontractor's lien is absolutely dependent upon physical incorporation of the materials furnished into the structure, do not so hold when construed with reference to the questions at issue in the cases themselves. Thus in McAuliffe v. Jorgenson, 107 Wis. 132, 82 N. W. 706, where the owner of a well-boring machine, who leased it to the principal contractor who was digging a well, claimed a subcontractor's lien for the hire of the machine, it was said that under no theory could it be held that the plaintiff furnished any materials which entered into or became a component part of the well, but that the machine simply was a part of the contractor's plant. So in Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36, the question was whether certain shelving and counters in a store were intended to be fixtures, so as to become part of the realty, or intended to be personal property alone, and the question of lien was dependent on this question. It was in this connection said that “the materials furnished must become a part of the building”; but it is very plain that in neither of these cases was it held that under no circumstances could a subcontractor acquire a mechanic's lien unless the materials furnished by him were actually incorporated into the finished structure.

It is very easy to see why, in case a subcontractor delivers materials to the principal contractor, and the latter immediately sells them elsewhere, no lien should exist; but it is not easy to see why, in case the materials actually come into the possession and control of the owner and he retains or disposes of them, there should not result a lien just as well as in the case where the principal contractor makes a like delivery into the possession of the owner. The statute gives the subcontractor a lien for furnishing materials “in any of the cases” named in the section giving a lien to the principal contractor, and under the decisions of this court the delivering of materials into the...