Goodman v. Baerlocher

• Decision Date: 02 October 1894
• Citation: 88 Wis. 287,60 N.W. 415
• Parties: GOODMAN ET AL. v. BAERLOCHER.
• Court: Wisconsin Supreme Court

88 Wis. 287

60 N.W. 415

GOODMAN ET AL.

v.BAERLOCHER.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Actions by P. A. Goodman and others, by H. M. Peyton and others, and by J. B. Noyes and another, against Sophia Baerlocher and others to foreclose lien claims. L. H. Paddock and the Warehouse & Builders' Supply Company were made defendants, and filed claims for liens. The actions were consolidated, and all the lien claimants were made parties plaintiff. From the judgment, defendant Baerlocher appeals. Reversed.

The plaintiffs in this action, which is a consolidation of five several claims or actions by the respective claimants into one, sought to enforce liens for divers sums for materials and labor furnished and performed to and for the defendants Gross & Heimer, contractors, in and about the construction and erection of a building for the defendant Baerlocher, under a contract with her, upon lots 3 and 4 in block 3 in the fifth division of West Superior, Wis., for the sum of $5,150, exclusive of plumbing, gas fitting, and tin work, to be completed by August 8, 1891. Gross & Heimer had the building about two-thirds completed, July 16, 1891, when it was blown down and destroyed, except the foundation, consisting of piles driven in the ground. On August 5, 1891, Gross & Heimer again commenced the construction and erection of the building mentioned in the contract, on the same foundation, on said premises, under their said contract, and continued work thereon until November 15th in the same year; and, before any of the claims for liens on the several demands in this action had been filed in the office of the clerk of the circuit court, the defendant Baerlocher had paid said contractors, Gross & Heimer, or on their account, the full contract price for the said building, and on July 31, 1891, and before said claims for liens were filed, she borrowed of the defendant Sheldon $6,000, to be paid in seven years, with interest at 8 per cent. per annum, and secured the same by note, and mortgage of said lots, and this entire sum was expended in paying Gross & Heimer for constructing said building, and on debts contracted by them for that purpose. (1) The claim of the plaintiffs Goodman, Wilcox & Co. is for $71 for materials that went into the first building. (2) The claim of the plaintiff the Warehouse & Builders' Supply Company was wholly for material that went into the same building. (3) The claim of Peyton, Kimball & Co. was for a balance for material, in the sum of $887.88, all of which went into the first building, except $75 thereof. (4) The claim of J. B. Noyes & Co. was for a balance of $209.66 for lumber and materials that went into the second building. (5) The claim of the plaintiff L. H. Paddock was for work and labor performed by him for the contractors in the first building to the amount of $26.10, and $8.80 on the second building, and as assignee of divers other small claims for work and labor for said contractors on said building, $145.82 of which was done and performed on the first building, and $38.55 on the second. A question arose as to the validity of the claim for a lien filed by J. B. Noyes & Co., on the ground that although it was deposited with the clerk of the proper court on the 20th of November, 1891, and thereafter remained in his office, as part of the files thereof, said clerk having received the same, with another lien petition, without noticing the fact, the former being folded inside of the latter, so that the petition in question was not indexed, neither was any file mark placed thereon until the 24th day of May, 1892. The defendant Baerlocher insisted, among other things, that Gross & Heimer, contractors, entered into an agreement with said Noyes & Co. whereby they were to furnish and sell all the lumber necessary to complete said building for the agreed sum of $992.82, and that Noyes & Co. were not to furnish said contractors any more or other lumber to be used on the building, except as provided by said contract, without the consent of the defendant; and this was upon the express understanding that said premises would not be subject to any lien by reason of any more or other lumber furnished by said J. B. Noyes & Co., and used in said building, without such consent. The testimony on this subject was conflicting, and the court, in substance, found against the defendants' contention. As conclusions of law the court found: (1) That the destruction of the first building did not cut off the liens on the premises upon which such building was situated, for indebtedness accrued for material and labor in its construction. (2) That the liens for indebtedness accrued in the construction of the first building have precedence over the mortgage to the defendant Sheldon, the building having been commenced before the giving of such mortgage, but that as the construction of the second building was commenced subsequent to July 31, 1891, the date of the mortgage lien, all liens that exist for indebtedness which accrued in the construction of such second building are subject to said mortgage lien; that the claimants the Warehouse & Builders' Supply Company, Goodman, Wilcox & Co., H. M. Peyton, and L. A. Barber, surviving partners of Peyton, Kimball & Barber, for materials, etc., were entitled to liens upon all the interest of defendant Baerlocher in and to the lots described in the complaint, upon which the building was situated, in the construction of which the indebtedness accrued at the time of its commencement; that said Peyton and Barber, as surviving partners, etc., were entitled to a lien for the said sum of $75, and the said J. B. Noyes & Co. for $209.61, both of which claims were for materials, etc., and L. H. Paddock for labor in the sum of $47.35 upon the building actually constructed upon the said lots, and upon all the right, title, and interest of the said defendant Baerlocher in and to the lots at the time of the commencement of the construction of the first building, for $171.92 for work and labor thereon. And the court rendered judgment accordingly, from which the defendant Baerlocher appealed, and assigned various errors.W. E. Hoehle, J. P. Geiser, and D. E. Roberts, for appellant.

Ross, Droyer, Smith, Hanitch & Douglas, Swift, Murphy & Bundy, Kennedy & Burnett, and John Brennan, for respondents.

PINNEY, J. (after stating the facts).

1. The original contractors, Gross & Heimer, had not performed their contract when the first building, being in an incomplete condition, was destroyed. It had not been delivered to or accepted by the owner, and was therefore at the risk of the contractors, and the destruction of the building did not excuse them from performing the contract. Dermott v. Jones, 2 Wall. 1;Adams v. Nichols, 19 Pick. 275;Tompkins v. Dudley, 25 N. Y. 272; Trustees v. Bennett, 27 N. J. Law, 515. In Tompkins v. Dudley, supra, it was held that the owner of the lots might recover back from his contractor payments in such case which he had made on account of the building. In this case the building had not only not been completed, but it had been utterly destroyed, so that the owner of the ground had received no benefit from the materials and work and labor employed in attempting to build it, and the original contractors could not have recovered anything or enforced a lien for what had been furnished or done in attempting to construct and erect the building. Whether the subcontractors or material men and laborers under the contractors are in any better situation is the question to be determined. Rev. St. § 3314, provides that: “Every person, who as principal contractor * * * performs any work or labor, or furnishes any material, in or about the erection, construction, * * * of any dwelling house, building, * * * shall have a lien thereupon, and upon the interest of the owner of such dwelling house, building, * * * in and to the land upon which the same is situated, * * * not exceeding in extent,” etc. And section 3315 extends the right to subcontractors of a principal contractor or employés of any contractor or subcontractor “who performs any work or labor for, or furnishes any materials to a principal contractor or subcontractor in any of the cases mentioned in the preceding section,” if within 60 days thereafter he gives the specified notice in writing to the owner, or his agent, of the property to be affected by such lien, “with a statement of the labor performed or materials furnished, and the amounts due from such principal contractor or subcontractor, and that he claims the lien given” by chapter 143, Rev. St. The lien provided by the statute is “in the nature of a charge on land given by statute to the persons named therein to secure a priority or preference of payment for the performance of labor or supply of materials to buildings or other improvements, to be enforced against the particular property in which they have become incorporated, in the manner and under the limitations therein expressly provided.” Phil. Mech. Liens, § 9. In Van Stone v. Manufacturing Co., 142 U. S. 128, 136, 12 Sup. Ct. 181, it was said, in substance, that the lien is given to secure priority of payment of the price and value of work performed and the materials furnished; that “it is the use of the materials...