Reindl v. Heath

• Decision Date: 11 March 1901
• Citation: 109 Wis. 570,85 N.W. 495
• Parties: REINDL ET AL. v. HEATH ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 570

85 N.W. 495

REINDL ET AL.

v.HEATH ET AL.

Supreme Court of Wisconsin.

March 11, 1901.

Appeal from circuit court, Langlade county; John Goodland, Judge.

Action by John Reindl and others against Edward Heath and others. Demurrer to complaint was overruled, and defendants appeal. Affirmed.

Appeal from order overruling a demurrer to the complaint for improper joinder of causes of action. The complaint set forth a contract whereby the plaintiffs agreed to manufacture “all the saw logs that may be purchased and delivered by the parties of the second part [the defendants] at the millyard of said first parties * * * during the winter of 1899 and 1900, which shall not be less than four million feet,” at prices named. The first cause of action alleges performance of work in accordance with this contract to an amount in excess of payments of $1,204.89, prays recovery therefor, and that the same be adjudged a lien upon the lumber so sawed, now in the possession of the defendants. The second cause of action alleges failure by the defendants to furnish the full 4,000,000 feet of lumber, and that by reason of such failure plaintiffs suffered damage in idleness of mill, etc., in the sum of $6,000, recovery of which is prayed.

Quarles, Spence & Quarles, for appellants.

Bouck & Hilton, for respondents.

DODGE, J. (after stating the facts).

By express statute (section 2647, Rev. St. 1898) it is provided: “The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable or both, where they arise out of (1) the same transaction, or transactions connected with the same subject of action, or (2) contract express or implied.” It seems entirely obvious that the two causes of action against the defendants set forth in this complaint both arise out of contract; indeed, out of the same contract. The first is a cause of action to recover upon defendants' breach of the provision of that contract to pay certain money for services rendered. The second cause of action is to recover damages for the same defendants' breach of another provision of that contract to supply a certain quantity of timber to be sawed. Thus stated, there seems to be hardly room for argument, but the fact is pressed upon our attention that accompanying the allegation constituting the first cause of action are allegations of other facts sufficient to entitle the plaintiffs to a lien upon the lumber sawed, and still in the ownership of the defendants, and a prayer for such relief, in compliance with section 3331, Rev. St. 1898. This, it is contended, transforms the first cause of action from one arising out of contract into something else, and this view is supported by a quotation from Collins v. Cowan, 52 Wis. 634, 637, 9 N. W. 787, where it is said: “The action to enforce the lien is sui generis. It bears some analogy to a libel in rem and proceedings thereon in admiralty.” Also from Shafer v....