Hall v. Banks

• Decision Date: 17 March 1891
• Citation: 48 N.W. 385,79 Wis. 229
• Parties: HALL ET AL. v. BANKS ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 229

48 N.W. 385

HALL ET AL.

v.BANKS ET AL.

Supreme Court of Wisconsin.

March 17, 1891.

Appeal from circuit court, Douglas county.

This is an action to enforce liens upon certain lots in the city of Superior for the price of labor performed and materials furnished by the plaintiffs as subcontractors in the erection of certain buildings upon said lots. The lots were held by the defendants W. B. and J. L. Banks under a contract for the purchase of the same and other lots of the defendant the Land & River Improvement Company, which holds the legal title thereto. On March 28, 1889, the Banks entered into a contract with the defendant Maynard, in and by which Maynard agreed to erect on the lots so purchased by the Banks 25 frame dwellings, according to certain plans and specifications, and to furnish the material therefor. Three of said dwellings were to be erected upon the lots upon which the liens are claimed. The work was to be completed August 1, 1889. The Banks were to pay Maynard therefor $16,825, of which 80 per cent. was to be paid on estimates as the work progressed, and the remaining 20 per cent. when the work should be completed, and proof furnished that there were no liens against the lots for work and materials. On April 18, 1889, Maynard executed to the Banks a bond with sureties, indemnifying the latter from loss suffered by reason of the failure of Maynard to perform the agreement on his part, and particularly against liens of subcontractors. Maynard abandoned the work early in August, but at that time the buildings were so nearly completed that the Banks completed the same at an expense of about $100. When the buildings were thus completed, the Banks had paid Maynard (including the cost of completing them after Maynard abandoned the work) $12,857.30, leaving an unpaid balance due Maynard of $3,967.70. The plaintiffs were subcontractors under contracts with Maynard, and furnished materials used in the erection of the three buildings above mentioned, and performed labor for him on such buildings. Their claims there for aggregate something over $350. This action is to enforce liens for such claims. Other subcontractors filed petitions for liens on the remainder of the 25 buildings and the lots upon which they were erected. These claims aggregate over $2,200. Maynard was also indebted to Edwards & McCulloch Lumber Company about $4,000 for materials used in the buildings. That company did not institute lien proceedings. August 3, 1889, Maynard assigned the unpaid balance of the contract price for the buildings to Edwards & McCulloch Company, and on August 7th that company gave due notice of such assignment to the Banks. When such notice was given, no notice of any claim for a lien had been served upon the Banks or the Land & River Improvement Company. The Banks afterwards paid such balance to the Edwards & McCulloch Company. Before such payment was made the latter company gave the Banks a bond indemnifying them against liens of subcontractors. When the payment was made, the Banks knew that the claims here in suit existed, and were unpaid. The facts above stated appear from the complaint, the answer of the Banks, a stipulation of facts, the testimony given on the trial, and the findings of fact by the court. The conclusions of law are, in susbtance, that when notices of the lien claims of the plaintiffs were served on the Banks they were not indebted to Maynard; that the contract between the Banks and Maynard is governed by the statutes as they existed prior to the enactment of chapter 333, Laws 1889, and hence that plaintiffs were not entitled to the liens claimed, but were only entitled to personal judgments against Maynard for the amount of their respective claims. Judgment was thereupon entered, dismissing the action as to the Banks and the Land & River Improvement Company, with costs. The plaintiffs appeal from such judgment.Reed, Grace & Rock, for appellants.

Ross & Dwyer and F. W. Downer, for respondents.

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

The lien laws as they existed before the enactment of chapter 333, Laws 1889, contained the provision that in actions by subcontractors to enforce liens upon premises and buildings “in no case shall the owner be compelled to pay a greater sum for or on account of such house, building, or other improvement than the price or sum stipulated in the original contract or agreement,” with the proviso that if the contract price is fixed unreasonably low, with intent to defraud subcontractors, the basis of the owner's liability shall be a fair price for the labor and materials used in the building, instead of the contract price. Rev. St. § 3315, as amended by chapter 312, Laws 1885, and chapter 535, Laws 1887. Such was the law until April 12, 1889, when chapter 333 of that year went into effect. That chapter repeals the above restriction upon the liability of the owner, and makes him absolutely liable to subcontractors who comply with the requirements thereof for the amount of their claims, without regard to the contract price of the buildings, or the sum the owner may be indebted to the contractor when notice of the subcontractor's claim for a lien is served, or at any other time. The contract between the Banks and Maynard for the erection of the buildings in question was made March 28, 1889. Chapter 333, Laws 1889, took effect by publication thereof April 12, 1889. Hence chapter 333 was not in force when such contract was made. It was in force, however, before Maynard incurred any...