E. M. Fish Co. v. Young

• Decision Date: 30 January 1906
• Citation: 127 Wis. 149,106 N.W. 795
• Parties: E. M. FISH CO. v. YOUNG ET AL.
• Court: Wisconsin Supreme Court

127 Wis. 149

106 N.W. 795

E. M. FISH CO.

v.YOUNG ET AL.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Eau Claire County; James O'Neill, Judge.

Action by the E. M. Fish Company against John H. Young and others. From the judgment rendered, both parties appeal. Modified.Wickam & Farr, for plaintiff.

Bundy & Wilcox, for defendants.

WINSLOW, J.

This is an action to foreclose a mechanic's lien for repairing and rebuilding a dwelling house. The court adjudged a lien for $39.50, with interest and costs, and both parties appeal.

Upon the plaintiff's appeal the contention is that the judgment should have been entered for $175.69, and this question will first be considered. It appears that prior to January 14, 1902, the defendant Young's house had been partially destroyed by fire and that Young made an oral agreement with the plaintiff to make the necessary repairs as cheap as any other contractor, the defendant to furnish such material as he could. Under this arrangement the plaintiff went to work about the 14th of January, 1902, and ceased to work March 22d following. Young made payments on the account from time to time, among which payments was a car load of lumber, which was credited to him by plaintiff April 19, 1902, at $157.19, but which afterwards turned out to be not the property of Young. On May 16th following the parties met and Young turned over to plaintiff a due bill for $22.69, payable in lumber, and sufficient cash to amount to $75 in all, and the plaintiff gave him a receipt “to balance account to date.” Shortly after this transaction Young ordered of the plaintiff screens for the windows and doors of the house, and the plaintiff manufactured them and placed them upon the windows and doors of the house May 31st, attaching them with buttons, and also repaired some old screens for the house; the total value of labor and materials in connection with the screens being $39.50, and the work being finished June 7th. This action was commenced May 30, 1903. The plaintiff claims that the furnishing of the screens was a part of the original contract, and as it was afterwards obliged to pay the true owner of the car load of lumber therefor it sought to enforce lien in this action for the amount which it was obliged to pay the true owner for the car load of lumber and for the bill for screens as for a single continuous bill. The court found, however, that the original contract of repairing was completed March 22, 1902, and that the contract for the screens was a separate and independent contract. Such being the finding, and this action not having been commenced until May 30th in the following year, the court held that there could be no lien for the work on the original contract because the action was not commenced within one year from the last charge for the performance of work (Wis. St. 1898, § 3318), and only adjudged a lien for the furnishing of the screens. This was purely a question of fact upon the evidence. We cannot say that the conclusion reached by the court is against the weight of the evidence, and hence the plaintiff's contention must fail.

Upon the defendant's appeal three contentions are made, which will be briefly considered.

1. It is claimed that the window and door screens were not so attached to the house as to become fixtures, and hence that no lien upon the house can be adjudged for them. This contention cannot prevail. The screens were manufactured specially for and fitted to the house, were adapted to its permanent enjoyment and placed there by the owner. It is true that (according to the findings) they were not physically attached or screwed on, but were simply fastened by buttons (although it is not quite clear how doors could be so attached and serve any useful purpose). Physical annexation, however, although always an important consideration, is not the sole test nor by any means the controlling tests in determining the question of fixture or no fixture. The question of the intention of the party making the annexation is the principle consideration. Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36. When the...