Rinzel v. Stumpf

• Decision Date: 13 January 1903
• Citation: 93 N.W. 36,116 Wis. 287
• Parties: RINZEL v. STUMPF ET AL.
• Court: Wisconsin Supreme Court

116 Wis. 287

93 N.W. 36

RINZEL

v.STUMPF ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1903.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Action by Peter J. Rinzel against Charles J. Stumpf and others. Judgment for plaintiff, and defendants appeal. Reversed.

On September 22, 1899, the defendants Stumpf & Langhoff entered into a contract with the defendant F. K. Markle Company, a corporation, to erect and construct for them certain shelving, counters, and tables, and place them in a building then being constructed for them on their premises, in the city of Milwaukee, for the sum of $1,678.50. Thereafter the Markle Company let the contract to the plaintiff, as subcontractor, to do a part of said work, and to manufacture said shelving, counters, and tables, for the lump sum of $867. During the progress of said work the plaintiff did extra work for said F. K. Markle Company amounting to $17.80. Prior to the commencement of this action said company paid plaintiff the sum of $500 on account. The court found that the plaintiff furnished the materials mentioned, which were placed in a building owned by Stumpf & Langhoff, and that the latter intended the same for their permanent and special use therein; that the articles so furnished were essential to the use for which they were used in the building; that they were specially adapted to the place where used; and that plaintiff had a mechanic's lien therefor. The court further found the giving of notice and the filing of a lien, and gave judgment for plaintiff for the entire amount claimed. The defendants Stumpf & Langhoff took issue with the material matters alleged in the complaint, and filed exceptions to the findings made. They also requested the court to make findings substantially to the effect that plaintiff's contract was an entire contract, for a lump sum; that it was not said defendants' purpose to make such shelving a permanent erection or addition to the freehold; that such shelving was but slightly attached to the building, and the tables were none of them attached to the building, except that two were glued around a center post. Due exceptions to the court's refusal to find were taken. Judgment in plaintiff's favor was duly entered, from which Stumpf & Langhoff take this appeal.Doerfler, McElroy & Eschweiler, for appellants.

Rogers & Mann, for respondent.

BARDEEN, J. (after stating the facts).

The principal question to be determined on this appeal is whether the plaintiff is entitled to a mechanic's lien under the circumstances set out in the statement. Plaintiff was a subcontractor, and agreed with the principal contractor to furnish certain shelving and counters or tables which were placed in the appellants' building. His accepted proposition was to furnish the materials he did furnish for a lump sum of $867. The defendants' contention is that none of said articles were of such a character as to give plaintiff a lien therefor. Section 3314, Rev. St. 1898, so far as is necessary to this discussion, provides that every person who performs any work or labor or furnishes any materials “for or in or about the erection, construction, repair, protection or removal” of any building shall have a lien therefor upon compliance with certain specified conditions. Section 3315 gives a subcontractor a lien upon giving notice, etc. These statutes have received a somewhat liberal construction in the interest of lien claimants. See North v. La Flesh, 73 Wis. 520, 41 N. W. 633. But all of the cases brought to our attention go upon the theory that the work done and materials furnished must enter into the “erection, construction, repair,” etc., of the building upon which the lien is claimed. In other words, materials furnished and work done must become a part of the building, as between the parties, on the theory of becoming fixtures. This is the argument of respondent, and his brief is devoted to cases illustrative of the law of fixtures. What was said on the subject of fixtures in Taylor v. Collins, 51 Wis. 123, 8 N. W. 22, and approved in subsequent cases, establishes the law of fixtures as administered in this state. We restate the doctrine as follows: To become fixtures, there must be: “First, actual physical annexation to the realty; second, application or adaptation to the use or purpose to which the realty is devoted; third, an intention on the part of the person making the annexation to make a permanent accession to the freehold.” To this may be added the proposition stated in Land Co. v. Becker, 96 Wis. 206, 71 N. W. 117, that “the matter of intention of the parties is held to be the principal consideration.” This question of intention is chiefly important in contests between the grantee of the freehold and mortgage or lien claimants. In the case at bar the facts are but little in dispute. The appellants, who were owners of the building, and fitting it up for use as a clothing store, contracted for the necessary shelving and counters or tables. The shelving was of different lengths and widths, and made to perform to the contour of the inside of the store. It was attached to the building by being toe-nailed to the walls and floor so as to make it stationary and permanent. It is probably true that it could have been removed without any serious injury to the building, but still we have actual, physical annexation, adaptation to the use of the building, and probable intent on the part of the owners to make the annexation permanent. The appellants argue that there is no evidence to support this last contention, but we think it follows as a just inference from all the circumstances in the case. We can readily agree with so much of the conclusion of the trial court as finds the shelving a part of the freehold. As to the tables mentioned, a different question arises. The evidence shows that 24 tables were furnished, all but two of them having no connection or attachment to the freehold. The element of attachment or annexation to the freehold in some way is one that cannot be ignored. In none of the cases called to our...