Phœnix Mfg. Co. v. McCormick Harvesting Mach. Co.

• Decision Date: 15 October 1901
• Citation: 111 Wis. 570,87 N.W. 458
• Parties: PHŒNIX MFG. CO. v. MCCORMICK HARVESTING MACH. CO.
• Court: Wisconsin Supreme Court

111 Wis. 570

87 N.W. 458

PHŒNIX MFG. CO.

v.MCCORMICK HARVESTING MACH. CO.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Appeal from circuit court, Chippewa county; A. J. Vinje, Judge.

Action by the Phœnix Manufacturing Company against the McCormick Harvesting Machine Company, impleaded with B. Barnhart and another. From a judgment in favor of defendant company, plaintiff appeals. Reversed.

Between December 29, 1899, and March 7, 1900, the plaintiff furnished to the defendant Barnhart machinery consisting of boiler, engine, sawmill machinery, etc., to be wrought into a sawmill to be built by said Barnhart upon certain real estate held by him under land contract from the defendant Matthes, amounting in all to $470.03. Of this $434.40 were delivered on December 29th, the remainder on and subsequent to January 17, 1900. On January 12th Barnhart executed a chattel mortgage upon “all that certain personal property, to wit,” the description including the property thus sold by the plaintiff and other chattels, with the statement, “All clear, except $234, given to Phœnix Manufacturing Company, Eau Claire, Wis., for purchase price.” On January 17th Barnhart executed to the plaintiff a chattel mortgage for $225 (the unpaid balance) upon “the following described goods, chattels, and personal property, to wit,” describing specific articles theretofore received from plaintiff, securing a note for $225, due May 17, 1900. On June 2, 1900, plaintiff duly filed his claim for lien for the balance then due, consisting of the $225 balance due January 17th and $35.63 thereafter charged. Barnhart and Matthes interposed no defense. The respondent McCormick Harvesting Machine Company set up the receipt of the note and chattel mortgage of January 17th both as payment and as waiver of the right to mechanic's lien. The court made no finding of fact as to the intent with which the note and mortgage were received, but found as a conclusion of law that it had the effect to waive the right to lien for the indebtedness thereby evidenced and secured, and therefore denied lien for $225 of the claim, and awarded judgment of lien for the balance of $35.63. From this judgment the plaintiff appeals.Teall & Thomas, for appellant.

A. H. Shoemaker, for respondent.

DODGE, J. (after stating the facts).

The single question raised upon this appeal is whether the plaintiff must, as matter of law, be held to have waived his right to a mechanic's lien upon the real estate into which was wrought the property sold by him for that purpose by the act of taking for the purchase price thereof a promissory note and a chattel mortgage upon the specific chattels sold. The preponderance of authority doubtless is to the effect that a mechanic's lien will be deemed waived either by taking therefor a promissory note maturing not until after the statutory time fixed for enforcing the lien, or by taking independent security. Bailey v. Hull, 11 Wis. 289, 78 Am. Dec. 706;Schmidt v. Gilson, 14 Wis. 514;De Forest v. Holum, 38 Wis. 516, 524; Kneel. Mech. Liens, § 138 et seq.; Jones, Liens, §§ 1013, 1519, et seq.; Phil. Mech. Liens, §§ 273, 280. This rule has been modified by our statute, now section 3317, Rev. St. 1898, which denies any such effect to the taking of a note or other evidence of indebtedness. This statute, however, does not change the common-law rule as to the effect of taking independent security; nor has this court yet had occasion to decide as to the effect of such act, save in the one respect hereafter to be mentioned. The ultimate question is one of intent. If the parties, by their transaction, intended a waiver of the lien, no doubt such result is accomplished. If they intended that the lien should not be waived, but that the security should be taken merely as additional thereto, such intent will be given full effect by the courts. The significance, therefore, of such acts, is evidentiary only. They may serve to warrant the inference of an intent to waive in the absence of other satisfactory evidence on the subject. Bank v. Taylor (Tex. Civ. App.) 40 S. W. 876;Id., 91 Tex. 78, 40 S. W. 966;McKeen v. Haseltine, 46 Minn. 426, 49 N. W. 195; Kneel. Mech. Liens, § 138; ...