Moody & Meckelburg Co. v. Leek

• Decision Date: 22 March 1898
• Citation: 99 Wis. 49,74 N.W. 572
• Court: Wisconsin Supreme Court
• Parties: MOODY & MECKELBURG CO. v. LEEK ET AL.

99 Wis. 49

74 N.W. 572

MOODY & MECKELBURG CO.

v.LEEK ET AL.

Supreme Court of Wisconsin.

March 22, 1898.

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

Action by Moody & Meckelburg Company against W. P. Leek, the trustees of the Methodist Episcopal Church of Port Washington, and another. Judgment for defendant Leek and the trustees. Plaintiff appeals. Reversed as to trustees.

This is an action to enforce a material man's or subcontractor's lien upon a church building. The action was tried by the court, and the facts are not materially in dispute. It appeared that the defendants' church building was remodeled in the year 1893 by the defendant Parsons as principal contractor, the work being finished about September 18, 1893. The plaintiff corporation furnished building materials to Parsons to be used in the building, and which in fact went into the building (except a few small items), amounting to $705.60, the last item being furnished September 18th, and no part of the amount has been paid. The defense was that the trustees of the church never made or authorized any contract with Parsons for the work, and that the 60-days notice required by section 3315 of the Revised Statutes was never served upon the trustees or their agent. Upon these issues it appeared that there were four trustees of the church, and that the defendant Leek was the pastor of the church; that no contract was made by the trustees; but that Mr. Leek and one Coe, acting for the church, made a written contract with Parsons for the remodeling of the church without specific authority so to do from the trustees. The work went on under the contract, numerous changes being made from time to time, all under the direction of Leek, who acted as superintendent on behalf of the church. The work occupied from May until September, and the congregation worshiped in the basement during that time. The trustees attended church, and knew of the work, and made no objection. The work was practically done September 21, 1893, and the church was then dedicated. Difficulties then arose as to payment. The church found it hard to raise money. In November it appears that the trustees gave a mortgage on their parsonage for $500 to pay a part of the indebtedness for remodeling, but there was still a considerable amount left due. In October or November a meeting was arranged between the creditors and the trustees and Leek, and efforts were made to settle with all creditors. Plaintiff's representative was present at the meeting, and its claim was recognized, and an agreement was made in writing to settle at 80 cents on the dollar. This agreement was signed by all the creditors, and by four men acting for the church, of whom at least two were trustees; but it was never carried out. It is uncertain whether this meeting was a valid meeting of the trustees or not. The plaintiff demanded the production of the records of the corporation on the trial, but they...