North v. La Flesh

• Decision Date: 19 February 1889
• Citation: 73 Wis. 520,41 N.W. 633
• Parties: NORTH v. LA FLESH ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 520

41 N.W. 633

NORTH

v.LA FLESH ET AL.

Supreme Court of Wisconsin.

Feb. 19, 1889.

Appeal from circuit court, Clark county; NEWMAN, Judge.

This is an action on an account for goods, wares, and merchandise alleged to have been sold and delivered by the plaintiff to the defendant Thomas J. La Flesh between May 18, 1886, and May 23, 1887, to the amount of $1,516.33, and to enforce a lien upon a certain 40-acre lot of land described in the complaint, for $466.80 of such amount. It is alleged in the complaint that the defendant, Elizabeth La Flesh, who is the wife of the defendant Thomas, is the owner of the land upon which the lien is sought to be enforced, and that a portion of said goods, wares, and merchandise, of the value of $466.80, consisted of building materials which were sold to be used, and were used, in the erection of a house and barn upon such land, with the knowledge and consent of the defendant Elizabeth. It is also alleged that the defendant James H. Reddan has or claims a lien upon the same land, but which lien, if any, is subsequent to that of the plaintiff. A petition for a lien was filed, and this action commenced, within the times limited by the statute. Rev. St. § 3318. The sufficiency of the petition is considered in the opinion. The defendants La Flesh answered separately, alleging, among other things, that the defendant Thomas purchased the materials in question upon his own credit, and for his own use and benefit, as principal contractor, and erected the building in question as such for his wife, and that the plaintiff is a subcontractor only to the defendant Thomas. Also that the defendant Elizabeth never authorized her husband or any other person to purchase such materials for her use, and did know until this action was commenced that her husband had purchased the same on credit; and further, that he agreed to erect the building at his own expense. It is not denied that the buildings were erected with her knowledge and consent. The cause was tried by the court, (a jury having been waived,) and thereafter the following findings of fact and conclusions of law were filed:

“FINDINGS OF FACT.

(1) That during all the time mentioned in the complaint the plaintiff was a hardware merchant and dealer in building materials at Neilsville, Clark county, Wis. (2) That the defendant Thomas J La Flesh, during all the time mentioned in the complaint, and for a long time prior thereto, was a dealer in building materials, and a dealer in general merchandise, hardware, lumber, lath, shingles, etc., and had a general store in Clark county, Wis. (3) That on and between the 18th day of May, 1886, and the 23d day of May, 1887, plaintiff sold and delivered to the defendant Thomas J. La Flesh, on his own personal credit and account, and as such merchant, goods, wares, and merchandise and building materials, and performed labor for him, and paid out and expended moneys for him, at his request, in all to the amount of seventeen hundred and twenty-three dollars and sixty-seven cents. (4) That the defendant Thomas J. La Flesh paid thereon in money, shingles, groceries, etc., three hundred and ten and 21-100 dollars, leaving a balance due unpaid, on the 24th day of May, 1887, of fourteen hundred and twelve and 96-100 dollars. (5) That a further payment was made thereon, November 17, 1887, of two hundred and ninety and 93-100 dollars, so that, after computing interest at seven per cent., there was due at the date of the trial of this action, March 15, 1888, eleven hundred and eighty-eight dollars and sixty-four cents. (6) That said merchandise was charged to said defendant Thomas J. La Flesh, on the books of the plaintiff, in the order in which they were purchased, and in one continuous account, without reference to the use thereof in any particular building, and without reference to any rights to or claim for lien. (7) That the defendant Elizbeth La Flesh is the wife of Thomas J. La Flesh. (8) That the defendant Thomas J. La Flesh was not the agent of the defendant Elizabeth La Flesh, and had not authority from her to so act, and that he did not act as the agent of the defendant Elizabeth La Flesh in any of the matters claimed in this action. (9) That the defendant Elizabeth La Flesh was the owner of the lands described in the complaint at the time mentioned therein, and still is the owner thereof. That she constructed a building thereon, and knew that it was being constructed, and consented that it might be constructed thereon. (10) That the defendant Elizabeth La Flesh did not know and did not consent that any of the materials used thereon should be or had been purchased on credit, but believed that they were being paid for as used and purchased. (11) That the defendant James H. Reddan has a mortgage on said real estate of said Elizabeth La Flesh, which was executed to him August 4, 1887, for $5,000, by said defendant Elizabeth La Flesh, which is subsequent to the last date of goods furnished by the plaintiff to the defendant Thomas J. La Flesh. (12) That the plaintiff has no lien for any of the materials mentioned in the complaint on the property described in said complaint.”

“CONCLUSIONS OF LAW.

(1) That the plaintiff is entitled to judgment against the defendant Thomas J. La Flesh for the sum of eleven hundred and eighty-eight and 64-100 dollars, without costs, and without judgment for a lien on the premises described in the complaint, or any part thereof. (2) That the defendants Elizabeth La Flesh and James H. Reddan are entitled to judgment against the plaintiff Henry A. North. Let judgment be entered accordingly, to be signed by the clerk.”

Judgment was entered in accordance with the foregoing conclusions of law. The plaintiff appeals from such judgment. The statute upon which the action is based is act Wis. 1885, amending Rev. St. Wis. § 3314, which provides that the lien of a materialman “shall also attach to, and be a lien upon, the real property of any person on whose premises such improvements are made, such owner having knowledge thereof and consenting thereto.”

James O'Neill, for appellant.

R. F. Kountz and R. J. MacBride, for appellees.

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

That portion of the judgment of the circuit court which denies the plaintiff a lien upon the land of Mrs. La Flesh, described in the complaint, rests mainly upon the sixth finding of fact, which is to the effect that all the merchandise sold by the plaintiff to the defendant Thomas was charged to the latter on the books of the plaintiff in the order of their purchase in one continuous account, without reference to the use thereof in any particular building, and without reference to any rights to or claim for a lien. In other words, that, considered in connection with other findings of fact, the transaction was a sale by one merchant to another in the usual course of business, without reference to use in any building or right to a lien. If such finding of fact be sustained, the case is probably within the rule of Esslinger v. Huebner, 22 Wis. 632. In that case Mr. Justice PAINE, commenting upon a certain instruction given to the jury, said: “The plain meaning of this is that, although the lime was sold generally to F. W. Huebner on account, and without any reference to this or any other building, yet if he allowed any portion of it to be used in his wife's building, that would give the lien. This is not the law. How it might be in such a case if the purchaser used the material in his own building it is not necessary to inquire. But it seems clear that one who sells materials to another generally, without reference to any building, cannot follow them with a lien into the buildings of other parties to whom the purchaser may transfer them. And it would make no difference that they were used upon the separate property of the purchaser's wife.” Whether the rule of that case is affected by the subsequent legislation upon the subject of liens, and, if so, to what extent, need not be here determined, for the reason that we are satisfied that the evidence in the case does not support the sixth finding of fact. The evidence is almost conclusive that the plaintiff sold and delivered the materials in question to the defendant Thomas, to be used in the erection of the buildings on his wife's land, and that they were in fact so used. Indeed, the only testimony to the contrary is the inference which might, perhaps, under some circumstances, be drawn from the fact that the plaintiff charged such materials in his books in the order of sales, with non-lienable goods. But notwithstanding this mode of book-keeping,the testimony of...