Francis & Nygren Foundry Co. v. King Knob Coal Co.

• Decision Date: 26 April 1910
• Citation: 126 N.W. 39,142 Wis. 619
• Court: Wisconsin Supreme Court
• Parties: FRANCIS & NYGREN FOUNDRY CO. v. KING KNOB COAL CO. ET AL.

142 Wis. 619

126 N.W. 39

FRANCIS & NYGREN FOUNDRY CO.

v.KING KNOB COAL CO. ET AL.

Supreme Court of Wisconsin.

April 26, 1910.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the Francis & Nygren Foundry Company against the King Knob Coal Company and another. Judgment for plaintiff. Defendants appeal. Reversed and remanded.

Defendant King Knob Coal Company, under a verbal contract for a lease with a railway company, contracted with the Hoisting & Conveying Machinery Company to construct and place upon certain land of the railway company at Milwaukee coal-handling machinery to the extent of about $95,000, which by the contract of lease was not to become a part of the realty, but to be removable at pleasure by the coal company. The machinery company, principal contractor, ordered a considerable amount of castings from the plaintiff, some, if not all, of which were intended for the machinery so contracted for. Plaintiff furnished such castings from time to time to the machinery company at its place of business in Chicago, whence the machinery company transported the same to Milwaukee. The last articles supplied by the plaintiff which actually reached the premises were delivered October 14, 1905, but on October 26, 1905, the plaintiff delivered at the place of business of the machinery company in Chicago one gear wheel of value about $13, intended for use in the construction of said machinery. November 17, 1905, the machinery company became bankrupt, and at some time thereafter the receiver in bankruptcy, having taken possession of all its property, sold this gear wheel to a stranger. Ultimately the coal company purchased it from such third person and used it in completing the machinery left incomplete by the machinery company. On December 21st the plaintiff gave its notice of claim for subcontractor's lien, alleging the delivery of said gear wheel as the last charge. The trial court, finding substantially the above facts, held that such delivery was a sufficient furnishing to the owner to bring it within the statute, and thus to render the notice valid and effective as within 60 days from that date. It accordingly rendered a judgment for allowance of plaintiff's entire bill and for enforcement of subcontractor's lien both against the plant of the coal company and also against the land belonging to the railway company whereon it was situated, from which judgment the coal company and the railway company separately appeal.

C. H. Van Alstine and W. A. Walker, Jr. (W. C. Quarles, of counsel), for appellants.

H. T. Wilcoxson and Lynn S. Pease, for respondent.

DODGE, J. (after stating the facts as above).

The primary question is whether a subcontractor by merely delivering material to the contractor at his place of business which the latter never incorporates with the structure upon which the lien is claimed, nor even delivers to the premises or control of the owner of that structure, can be said to have furnished that material for, in, or about the construction of the machinery in the true sense of those words as used in section 3315, St. 1898. The expressions of every decision in this state are adverse to any such conclusion. It has been asserted or assumed from the earliest days that incorporation of the materials into the structure was an essential to a subcontractor's lien therefor. Jessup v. Stone, 13 Wis. 466, 471;Heath v. Solles, 73 Wis. 220, 222, 40 N. W. 804;Hall v. Banks, 79 Wis. 233, 48 N. W. 385;Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 175, 49 N. W. 1071;Brown v. Trane, 98 Wis. 1, 73 N. W. 561;McAuliffe v. Jorgenson, 107 Wis. 132, 134, 82 N. W. 706;Rinzel v. Stumpf, 116 Wis. 287, 290, 93 N. W. 36;Laev Lumber Co. v. Auer, 123 Wis. 178, 183, 101 N. W. 425;Taylor v. Dall, 131 Wis. 348, 355, 111 N. W. 490. It is true that the exact distinction was not presented for decision by the facts of any of the cases cited, so that the remarks in the decisions are in a degree obiter, but nevertheless they are significant of the view of the court as to proper construction of this lien statute, which construction is therefore confirmed by the many years of persistency without legislative attempt to modify it in this particular. In many...