Hausmann Bros. Manuf'g Co. v. Kempfert

• Decision Date: 19 June 1896
• Citation: 93 Wis. 587,67 N.W. 1136
• Parties: HAUSMANN BROS. MANUF'G CO. v. KEMPFERT ET AL.
• Court: Wisconsin Supreme Court

93 Wis. 587

67 N.W. 1136

HAUSMANN BROS. MANUF'G CO.

v.KEMPFERT ET AL.

Supreme Court of Wisconsin.

June 19, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Hausmann Bros. Manufacturing Company against August Kempfert and others to foreclose a subcontractor's lien. From separate orders refusing to strike out demurrers to the complaint, plaintiff appeals. Reversed.Briggs & Gulens, for appellant.

Kinne & Curtis, for respondents.

CASSODAY, C. J.

This action was commenced August 13, 1895. The complaint alleges, in effect, that Frenz & Popp, being employed as principal contractors to erect and construct certain buildings for the defendant August Kempfert upon lands therein described, the plaintiff, a corporation organized, existing, and doing business under the laws of this state, and a manufacturer and dealer in sash, doors, blinds, mouldings, and other building materials, between January 16, 1895, and June 28, 1895, at the special instance and request of Frenz & Popp, did furnish, sell, and deliver to Frenz & Popp sash, doors, blinds, mouldings, and other building materials, and did and performed labor, work, and services for and at the agreed prices, amounting in the aggregate to $500; that the last date of the performance of the labor and the furnishing of the materials was June 28, 1895; that there is now due to the plaintiff from Frenz & Popp therefor the $500 mentioned, with interest; that said work was performed and the materials furnished with the knowledge of such owner, and that he consented thereto; that on July 8, 1895, the plaintiff gave notice in writing to the defendant August Kempfert, the owner of the property affected by such lien, which notice, it is claimed, contained and set forth all that is required by the statute in such cases; that on July 9, 1895, the plaintiff duly filed its claim for a lien in the office of the clerk of the circuit court, which claim contained the usual statements in such cases; that the defendant Catharina is the wife of the defendant August. The complaint demanded the usual judgment for a subcontractor's lien. The defendants August and Catharina, having appeared and demanded a bill of particulars, the same was served on their attorneys August 30, 1895. Thereupon August and Catharina separately demurred to the complaint, on the grounds that the court had no jurisdiction of the subject-matter of the action, and that the complaint did not state facts sufficient to constitute a cause of action against them, respectively. The plaintiff having moved to strike out each of such demurrers as frivolous, the court, by separate orders, denied both of such motions, and sustained both of such demurrers. The plaintiff appeals from each of those orders to this court.

1. We are constrained to hold that the notice given by the plaintiff, as subcontractor, to the owner of the buildings in question, was in substantial compliance with the statute. Sanb. & B. Ann. St. § 3315. The mere fact that it does not specifically name the section does not invalidate the notice, since it expressly states that “it claims said lien under and by virtue of the laws of the state of Wisconsin in such case made and provided.” Smith v. Headley, 33 Minn. 384, 23 N. W. 550. Every citizen of the state, so far as his dealings and conduct are concerned, is conclusively presumed to know the law of the state; and hence, when the owner was notified that the plaintiff, as subcontractor, claimed such lien under and by virtue of the laws of the state “in such case made and provided,” it did refer to the section with sufficient certainty.

2. The contention that the notice does not...