Capital City Lumber Co. v. Schroeder

• Decision Date: 10 May 1932
• Parties: CAPITAL CITY LUMBER CO. v. SCHROEDER ET AL.
• Court: Wisconsin Supreme Court

208 Wis. 157

242 N.W. 489

CAPITAL CITY LUMBER CO.

v.SCHROEDER ET AL.

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Capital City Lumber Company against Fred W. Schroeder and others. From a judgment for defendants, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

OWEN and FOWLER, JJ., dissenting.

This action was commenced July 16, 1930, to foreclose a claim for mechanic's lien.

The plaintiff, a Wisconsin corporation, is engaged in the business of furnishing lumber and building materials. Defendant Schroeder, at all the times hereinafter mentioned, was a carpenter contractor and builder, principally engaged in purchasing lots, improving them by constructing houses thereon, and then reselling them. Prior to the 27th day of August, 1928, Schroeder and his wife contracted to purchase a certain residence site on East Washington avenue in the city of Madison. On February 18, 1929, the Schroeders obtained a warranty deed of said premises. On and between the 27th day of August, 1928, and the 10th day of September, 1929, at the special instance and request of Schroeder, plaintiff furnished to him lumber and building materials reasonably worth the sum of $1,307.23. These materials were used in the construction of a house on the site mentioned. Prior to the furnishing of the materials plaintiff furnished to Schroeder an estimate of the cost of the materials which the plaintiff was in a position to furnish. No contract was entered into between the plaintiff and Schroeder which either bound the plaintiff to furnish materials at the estimated price or obligated Schroeder to purchase them. The plaintiff, however, did furnish to Schroeder materials of the value stated. The last date of furnishing materials for the erection of said house was on the 10th day of September, 1929, unless the furnishing of a front door on the 28th day of February, 1930, amounted to a last charge under a continuous furnishing. On the 29th day of October, 1929, Schroeder contracted to sell the premises to defendant Hinrichs. On the 11th day of November, thereafter, pursuant to said contract, Schroeder conveyed said premises by warranty deed to Hinrichs. By the contract dated October 29, 1929, Schroeder agreed to hang the front door and to perform other enumerated services necessary to complete the house. After the premises were conveyed to Hinrichs, the Schroeders continued to occupy the house as tenants of Hinrichs. The front door was furnished by the plaintiff without the knowledge of Hinrichs at a time when the plaintiff knew that Schroeder had sold the premises and that Hinrichs was the owner thereof. The plaintiff duly filed its claim for lien within six months from the 28th day of February, 1930, but not within six months from the 10th day of September, 1929.

The trial court found, among other things, that the Schroeders, for a valuable consideration, sold and conveyed the premises by warranty deed to Hinrichs, and that Schroeder contracted to finish the house by hanging a certain door and performing other work enumerated in the contract dated October 29, 1929; that on the 28th day of February, 1930, the plaintiff knew that the premises had been sold and conveyed to Hinrichs, and that Schroeder was under contract to finish said building for Hinrichs; and concluded that the plaintiff was not entitled to a lien upon the premises for the reason that its claim for lien was filed over six months after the last date of furnishing materials as principal contractor. In its decision the court held that the sale of the premises by the Schroeders to Hinrichs changed the relationship of Schroeder from that of owner, which theretofore existed, to that of principal contractor, and that, at the time the door was furnished by the plaintiff, the plaintiff was a subcontractor. No claim for lien was filed by the plaintiff as a subcontractor.

From a judgment which denied to the plaintiff foreclosure of its claim for lien entered on December 13, 1930, the plaintiff appealed.Wegener & Roick and Franklin W. Clarke, all of Madison, for appellant.

B. W. Huiskamp, of Madison, for respondents.

NELSON, J.

[1] It is well established that a conveyance of real esate, at a time when work thereon is in progress, or when the premises are subject to a lienable claim, which is thereafter perfected during the time limited by statute, does not affect the right of a materialman to a lien, for materials theretofore furnished. Rockel, Mechanics' Liens, p. 392, § 150; Hewett v. Currier, 63 Wis. 386, 23 N. W. 884;Crocker v. Currier, 65 Wis. 662, 27 N. W. 825;Hutchins v. Bautch, 123 Wis. 394, 101 N. W. 671, 107 Am. St. Rep. 1014;Reynolds v. Manhattan Trust Co. ...