Findorff v. Fuller & Johnson Mfg. Co.

• Decision Date: 06 June 1933
• Citation: 248 N.W. 766,212 Wis. 365
• Court: Wisconsin Supreme Court
• Parties: FINDORFF ET AL. v. FULLER & JOHNSON MFG. CO. ET AL.

212 Wis. 365

248 N.W. 766

FINDORFF ET AL.

v.FULLER & JOHNSON MFG. CO. ET AL.

Supreme Court of Wisconsin.

June 6, 1933.

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

Action by John H. Findorff and another, copartners transacting business as J. H. Findorff & Son, against the Fuller & Johnson Manufacturing Company and another. From a part of the judgment adverse to the plaintiffs, the plaintiffs appeal.--[By Editorial Staff.]

Judgment reversed, with directions.

This action was commenced April 14, 1931, to foreclose a mechanic's lien against certain premises located in the city of Madison, to wit: “The northeast fifty-one (51) feet of Dickinson Street between the southeast line of Mifflin street and the northwest line of Washington avenue adjoining Block two hundred twenty-three (223); also the southwesterly nine and 8/100 (9.8) rods of the northwest half (NW1/2) of said block two hundred twenty-three (223), all in the city of Madison, Dane county, Wisconsin, according to the recorded plat thereof.”

The trial court made certain findings of fact from which it concluded that the plaintiffs had no enforceable lien upon the northeast 51 feet of what is now Dickinson street, hereinbefore particularly described, but that the plaintiffs were entitled to a lien upon the remainder of the premises described. From a judgment entered September 8, 1932, wherein it was adjudged that the plaintiffs had no lien on what is now the northeast 51 feet of Dickinson street between the southeast line of Mifflin street and the northwest line of Washington avenue adjoining block 223, in the city of Madison, the plaintiffs appealed.Gilbert, Ela, Heilman & Raeder, of Madison, for appellants.

Virgil H. Roick, City Atty., of Madison (Theodore G. Lewis, of Madison, of counsel), for respondent.

Stephens, Sletteland & Sutherland, of Madison (Marvin P. Verhulst, of Madison, of counsel), for Fuller & Johnson Mfg. Co.

NELSON, Justice.

On and prior to February 13, 1930, Fuller & Johnson Manufacturing Company, a corporation, hereafter called the company, was the owner of the lands described in the statementof facts. At that time a comparatively new building belonging to the company was located at the corner of what is now Dickinson street and East Washington avenue. Adjoining said new building on its northwesterly side was a building known as the blacksmith shop which in turn adjoined another building, which faced westerly on what is now Dickinson street and northerly on Mifflin street. These buildings, with the exception of the blacksmith shop, were built upon the northeasterly line of what is now Dickinson street.

The blacksmith shop was situated partly upon the said northeast 51 feet of what is now Dickinson street and partly upon other lands belonging to the company. The portion of the blacksmith shop extending into what is now Dickinson street was about 102 feet in length and about 49 feet in width and extended back of what is now the street line a distance of 29 feet. The buildings mentioned were contiguous and used as one plant. Prior to February 13, 1930, there were negotiations between the city of Madison and the company looking to the purchase by the city for street purposes of the northeast 51 feet of Dickinson street between the southeast line of Mifflin street and the northwest line of Washington avenue adjoining block 223, then occupied in part by the blacksmith shop. The company offered to sell said land to the city for the sum of $20,000. Its offer was accepted by the passage of a resolution by the city council, but no formal contract seems to have been entered into. On February 13, 1930, the company entered into a written contract with the plaintiffs relating to the revision of the blacksmith shop building. The plaintiffs agreed to perform all labor, furnish all materials pertaining to the razing of the blacksmith shop back to the line of the new building; to remove all of the concrete floor covering this area; and to remove all débris from the property. The contract provided that “all timber, old brick,” etc., removed from the blacksmith shop should become the property of J. H. Findorff. The plaintiffs further agreed to erect a new outside wall to conform in construction and architecture with the outside wall of the new building and on a line with it; to remove the old roof over a portion of the old building; to erect a new saw-tootb truss roof according to specifications contained in the contract; to erect a temporary partition to inclose the remaining portion of the building during the period in which the razing of the old building was in process and during the construction of the new outside wall; and to perform certain other work. The contract provided that the work start immediately on the revision of the blacksmith shop, and that the outside portion should be razed and cleared to grade not later than February 28, 1930. The contract further provided: “All foregoing labor and material complete for the sum of $5475.” The plaintiffs immediately entered upon the performance of its contract. The work of razing and removing that part of the blacksmith shop which was located on the northeast 51 feet of what is now Dickinson street was completed prior to March 1, 1930. The final work under the contract was completed on April 15, 1930. On March 1, 1930, the company conveyed to the city of Madison by warranty deed “the northeast fifty-one feet of Dickinson street between the southeast line of Mifflin street and the northwest line of Washington avenue, adjoining block 223, in the city of Madison, for highway purposes.” The consideration for that conveyance was $20,000, which was paid to the company. At that time the company's plant, which included all of the lands hereinbefore mentioned, was subject to a trust deed to secure $290,000. The trustee released the premises conveyed to the city of Madison from the lien of the mortgage. The company paid to the plaintiffs on their contract the sum of $506.67, but defaulted as to the balance due. Thereafter, on October 1, 1930, the plaintiffs filed their claim for lien against the northeast 51 feet of Dickinson street, etc., and the other lands hereinbefore described. Affidavit of renewal was filed in March, 1931, and thereafter this action was duly commenced.

Although numerous contentions are made by the city of Madison in support of the judgment as rendered, we think this action may be disposed of by considering two principal questions: (1) Are the plaintiffs entitled to a lien for tearing down a part of the blacksmith shop and hauling away the materials and débris? In other words, did such work and labor constitute a “removal of any building” within the meaning of section 289.01, Wis. Stats.? (2) Was the contract divisible so as to permit the trial court to hold that that part of the contract relating to the work and labor of...