Edleman v. Kidd

• Decision Date: 23 December 1885
• Parties: EDLEMAN v. KIDD.
• Court: Wisconsin Supreme Court

65 Wis. 18

26 N.W. 116

EDLEMAN

v.KIDD.

Supreme Court of Wisconsin.

Filed December 23, 1885.

Appeal from circuit court La Fayette county.

P. J. Clawson and A. S. Douglas, for respondent.

Henry S. Magoon, for appellant.

TAYLOR, J.

This action was brought in the circuit court to recover for work and the labor done for appellant by the plaintiff as a carpenter and joiner and contractor and builder in and about the construction and erection of a barn for the appellant upon his farm, describing the same. The complaint alleges that the work was done at the special instance and request of the defendant; that it was done between the twenty-sixth day of September, 1881, and the fifth day of November, 1881; that the value of the work so done and performed was $212.57; that there was due to him from the defendant for such work the sum of $215.57; that the barn so erected by him is situated on land owned by the appellant, in the town of Decatur, described as the S. W. 1/4 of the N. W. 1/4 of section 29, township 2 N., of range 9 E.; that the last work was done on the fifth day of November, 1881, and that he duly filed, as required by law, his claim for a lien for the amount due and owing him, in the office of the clerk of the circuit court of Green county on the third day of January, 1881, and within six months from the time of doing such work aforesaid. It then sets out the substance of such claim, and alleges that a copy thereof is attached to and made a part of the complaint; alleges that one year had not elapsed since the doing of said work and the commencement of this action; and demands judgment for a lien, and for the sale of the barn and of the interest of the defendant in the lands upon which the barn is situated, etc. The copy of the petition for a lien was dated January 3, 1881. The complaint in the action was filed February 28, 1882. There was no denial of any of the allegations in the complaint. The answer alleges, first, as a defense, that the plaintiff, at the time and before he engaged to perform the work and labor described in the plaintiff's complaint, held himself out to the public, and represented to the defendant that he was a skillful mechanic and would and could perform said labor in a good and workman-like manner, and promised to give the work his personal attention and supervision, and also promised to do and perform the same, or cause the same to be done, in a good and workman-like manner. It then alleges it was done in an unskillful manner; that he employed unskillful workmen; and that the work was done in such a negligent and unskillful manner that such services and labor mentioned in the complaint were of no value whatever to this defendant, but, on the contrary, were a damage to him. The answer then sets out, by way of counter-claim, the alleged contract between the parties, alleges the unskillful manner in which the work was done by the plaintiff, and claims damages in the sum of $500. There was a reply to the counter-claim. The plaintiff recovered in the action, and a judgment was rendered in his favor for the amount claimed in his complaint, and he was adjudged to have a lien upon the barn, and the 40 acres of land upon which the same was situated, and directed the sale of the barn, and the interest of the defendant in the 40 acres on which the same was situate, to pay the amount found due to the plaintiff, with the costs and the costs of sale. The defendant appeals from the judgment rendered in the action. No bill of exceptions was settled or signed in the case, and the cause was argued here upon the record in the action.

There being no bill of exceptions to preserve the evidence and exceptions taken at the trial of the action, the only question which can be considered upon this appeal is whether the pleadings in the action support the verdict and judgment rendered. Phillips' Heirs v. Swart, 10 Wis. 426, and cases cited in the note to that case. See, also, Semmens v. Walters, 55 Wis. 675;S. C. 13 N. W. Rep. 889;Cord v. Southwell, 15 Wis. 211;McHugh v. Railway Co., 41 Wis. 75;Power v. Rockwell, 39 Wis. 585;Meyer v. Prairie du Chien, 9 Wis. 233;Johannes v. Youngs, 42 Wis. 401;Gilbank v. Stephenson, 30 Wis. 155;Dougherty v. Railway Co., 36 Wis. 402. The learned counsel for the appellant contends that the judgment rendered should be reversed (1) because the complaint fails to state a cause of action which entitles the plaintiff to a judgment declaring his claim against the defendant for work and labor a lien upon the barn and the lands upon which it is situated. (2) That the record fails to show that the issues in the case were tried by a jury, as demanded by the defendant under the statute. Section 3323, Rev. St. 1878. (3) That the judgment entered in the action is erroneous,-- First, because it directs the barn to be sold, and not the interest of the defendant therein; second, because it directs that if, upon the sale, the proceeds thereof shall not be sufficient to pay the plaintiff's judgment and costs, and the costs of the sale, that, upon the sheriff filing his report of sale showing such deficiency, the court shall enter a personal judgment against the defendant for the amount of such deficiency.

The points made by the learned counsel that the complaint is insufficient are,-- First, that it does not state the contract between the parties. The allegation of the complaint is that the work was done at the special instance and request of the defendant. This allegation raises an implication that the defendant promised to pay what the work was reasonably worth, and the complaint alleges that the work was worth $212.57. This we think is a sufficient statement of the contract upon which the work was done, especially when there was no demurrer, and the answer admits the employment, as well as the doing of the work, and defends only on the ground that the work was so badly done that it was of no value, but a damage.

The second objection is that the complaint does not show that the petition for a lien was filed in the proper clerk's office within six months next after the work was done. The complaint states that the petition was filed January 3, 1881, but in the same sentence says it was filed “within six months from the time of doing such work.” No issue was made as to the time when the petition was filed, nor is there any denial of the allegation that it was filed within six months from the time of doing the same, and no demurrer to the complaint, because it appeared on the face of the complaint that the petition for lien had not been filed within six months after the work was performed. The allegation as to the filing of the petition was clearly...