Cooper v. Cleghorn
| Decision Date | 21 September 1880 |
| Parties | COOPER and others v. CLEGHORN and others |
| Court | Wisconsin Supreme Court |
Argued August 31, 1880
APPEAL from the Circuit Court for Hock County.
Action to recover the balance due upon a written contract, and to enforce the same as a mechanic's lien. The contract was dated May 18th, 1875; and by the terms thereof the plaintiffs promised and agreed to sell to the defendants, for their grist mill, certain machinery described in the agreement and specifications accompanying it, including, among other things, an engine, the cylinder of which was to be cased with black walnut; a boiler, with 66 flues; four runs of French burr mill stones, faced and farrowed; four silent feeders one No. 3 Barnard separator; The plaintiffs further agreed to furnish the necessary plans, drawings and specifications and bills of material, and the necessary time of a competent mechanic to superintend the erection of said engine and boiler; also the time of a competent mill-wright to superintend the erection of said machinery and the mill-wright work. The contract also contained the following provisions:
The complaint sets forth the contract, and alleges due performance thereof, except that, by the consent of the defendants, certain changes were made in the machinery furnished. It further alleges that plaintiffs furnished extras, at the request of the defendants, worth $ 116.25; that defendants had not paid for the same, and had failed to pay $ 2,917.29 of the sum due by the terms of the contract; that the machinery furnished and the extras, except $ 20 in value thereof, were put in and about the defendants' grist mill, and became a part of said premises as fixtures thereto; and that a petition for a lien had been duly filed.
The answer admits the execution of the contract, and alleges certain defects and deficiencies in the machinery furnished, by reason of which the defendants were damaged to the amount of $ 8,000. It states, among other things, that they were unacquainted with mill machinery and the terms used to express the same; that plaintiffs represented the words "faced and farrowed," as used in the contract with reference to the mill stones, to mean that such stones would come ready for use; and that they were not ready for use, but required an outlay of $ 500 to make them so.
The evidence tended to show, among other things, that the engine and boiler were improperly set up; and that the plaintiffs did not furnish six bolting reels, bnt that the frames for such reels were made by the defendants at a cost of $ 18 each.
Testimony was also introduced in support of the allegations of the answer as to the mill stones, and the representations of the plaintiffs with regard to the meaning of the words "faced and furrowed."
The court found as facts, that the agreement above mentioned and the specifications accompanying it together constituted the only contract between the parties, and that the plaintiffs had, with certain exceptions, fully performed the contract. The exceptions were as follows: they furnished a boiler with 64 instead of 66 flues, but one equally good and received by the defendants without objection; instead of a No. 3 Barnard separator, they furnished a No. 2, which was received by the defendants without objection; instead of one of the four silent feeders, they furnished a "damsel and shoe," which was accepted by the defendants without objection; in lieu of two middlings purifiers, they furnished one large purifier by mutual agreement of the parties; the engine cylinder was cased with brass instead of black walnut, with the knowledge and approval of the defendants; by agreement, the scales were furnished by defendants at a cost of $ 216.45, for which sum and for $ 170.84 freight paid by them the defendants were entitled to credit on the contract. The court further found that the plaintiffs furnished extras to the value of $ 116.50; that all the machinery and material furnished in accordance with the contract, and all the extras except a dozen mill-picks of the value of $ 20, were so used and employed in and about the erection and construction of the mill as to become fixtures; and that defendants were entitled to credit on the contract by payments amounting to $ 5,582.70.
As conclusions of law the court held, that there was due to the plaintiffs on the contract and for extras, over and above all payments and set-offs, the sum of $ 2,933.55, and interest, amounting in all to $ 3,635.16; and that of such sum $ 3,610.37 was a lien upon the mill.
From a judgment in accordance with these conclusions, the defendants appealed.
Judgment affirmed.
For the appellants there was a brief by Bennett & Sale, and oral argument by Mr. Bennett. They contended, inter alia: The court erred in finding that the machinery and materials furnished became fixtures, and that the plaintiffs had a lien upon the mill. The agreement between the parties did not amount to a sale of the machinery, but was simply an agreement to sell. The title, ownership and right of possession were to remain in the plaintiffs until payment was made as agreed. Such payment was strictly a condition precedent, and, as it was never made, the right of property never vested in the defendants. Porter v Pettengill, 12 N. H., 299; Sargent v. Gile, 8 id., 325; Gambling v. Read, 1 Meigs, 281; Bigelow v. Huntley, 8 Vt., 151; Barrett v. Pritchard, 2 Pick., 512; Smith v. Lynes, 1 Seld., 41; Ayer v. Bartlett, 9 Pick., 156; Bennett v. Simms, 1 Rice, 421; Coggill v. R. R. Co., 3 Gray, 545; Herring v. Hoppock, 3 Duer, 20; Brewster v. Baker, 20 Barb., 364; Parris v. Roberts, 13 Ired. Law, 268; Smith v. Foster, 18 Vt., 182; Buckmaster v. Smith, 22 id., 203; Root v. Lord, 23 id., 568; Davis v. Bradley, 24 id., 55; Buson v. Dougherty, 11 Humph., 50; Copland v. Bosquet, 4 Wash. C. C., 594; Lamond v. Davall, 9 Q. B., 1030. The machinery, therefore, never became a part of defendants' freehold, but remained the personal property of the plaintiffs. Godard v. Gould, 14 Barb., 662; Kelsey v. Durkee, 33 id., 410; Cresson v. Stout, 17 Johns., 116; Walker v. Sherman, 20 Wend., 636; Gale v. Ward, 14 Mass., 352; Swift v. Thompson, 9 Conn., 63; Globe Marble Mills Co. v. Quinn, 19 Alb. L. J., 260; Kinsey v. Bailey, 9 Hun, 452; Sisson v. Hibbard, 10 id., 420; Dubois v. Kelly, 10 Barb., 496; Smith v. Benson, 1 Hill, 176; Farrer v. Chauffetete, 5 Denio, 527; Ford v. Cobb, 20 N. Y., 344; Wintermute v. Light, 46 Barb., 278; Howard v. Fessenden, 14 Allen, 124; Keogh v. Daniell, 12 Wis. 173. And the plaintiffs could have no lien for its value upon the mill property. Tay. Stats., 1762, § 1; R. S., sec. 3314; Hunter v. Warner, 1 Wis. 141; West v. Bolton, 4 Vt., 558. It has been held that asking independent security for the price of an article sold, is a waiver of the lien. Johnston v. Union Bank, 37 Miss., 526. Also, that the lien of a mechanic is discharged by an agreement on his part to look to the personal credit of the debtor or another, for satisfaction of his demand. Bailey v. Adams, 14 Wend., 201; Brown v. Gilman, 4 Wheat., 255, 291; 1 Mass., 214; 3 Jones & S., 542; 1 Hilt, 293; 18 Wall., 623. In this action the plaintiffs have bargained for their security, by providing in the contract that the "title, ownership and right of possession" of all the machinery shall remain in themselves, and shall not vest in the defendants until the payments are made. Liens are not to be extended by construction. Brown v. Gilman, 4 Wheat., 255; Taylor v. Baldwin, 10 Barb., 626; McFarland v. Wheeler, 26 Wend., 467. 2. The court erred in not allowing to defendants the cost of making the frames of the six bolting reels, the same not having been furnished by the plaintiffs in accordance with the contract. Plaintiffs were also liable on their warranty for the defective manner in which the machinery was constructed and set up. 3. The court should have allowed to the defendants the amount necessarily expended by them in making the mill...
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