Rohn v. Cook

• Decision Date: 04 April 1917
• Citation: 162 N.W. 183,165 Wis. 299
• Parties: ROHN v. COOK ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 299

162 N.W. 183

ROHN

v.COOK ET AL.

Supreme Court of Wisconsin.

April 4, 1917.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Mechanic's lien foreclosure action by George F. Rohn against Harriet M. Cook and H. W. Shattuck, executor under will of Sarah A. Holbrook, and William H. Greer and Ernst P. Butler, copartners as Wisconsin Mantel & Tile Company, Pittsburgh Plate Glass Company, and others. From an order sustaining a demurrer to their cross-complaint, William H. Greer and Ernst P. Butler, copartners as Wisconsin Mantel & Tile Company, appeal. Affirmed, and cause remanded.

This action was brought by plaintiff to enforce a mechanic's lien against certain real estate for material furnished, which real estate was owned by the defendant Harriet M. Cook and one Sarah A. Holbrook, since deceased, and whose executrix H. W. Shattuck is now one of the defendants. April 10, 1913, Harriet M. Cook and Sarah A. Holbrook, owners of the premises, entered into a contract with the Grand View Realty Company, by the terms of which said company was to have possession of the premises described in the contract for a period of 49 years and 6 months. The action was originally commenced against the owners of the realty, Harriet M. Cook and Sarah A. Holbrook, and afterwards the defendants William H. Greer and Ernst P. Butler, doing business as Wisconsin Mantel & Tile Company, were made parties. This company, after being made a party defendant, served a cross-complaint upon the owners in fee of the property, who demurred to said complaint on the ground: (1) That it did not state facts sufficient to constitute a cause of action; and (2) that the said action was not commenced as to said cross-complaint within the time limited by law, viz., within the time limited by section 3318, Statutes of Wisconsin. The court sustained the demurrer as to the first ground and overruled it as to the second. The Wisconsin Mantel & Tile Company, cross-complainants, furnished material to the Grand View Realty Company in the performance of the contract of lease made between Cook and Holbrook and said realty company. The contention of the cross-complainants is that the instrument which gave to the Grand View Realty Company possession for 49 years and 6 months for a certain consideration named in the agreement was not a lease as contemplated by section 3314, Stats., and that under this instrument the conventional relation of landlord and tenant did not exist between the Grand View Realty Company as lessee and the defendant Cook and the estate of Holbrook as lessors. It is therefore claimed on behalf of the appellant that the cross-complainants were entitled to a mechanic's lien upon the interest of the lessors Cook and Holbrook, therefore the court erred in sustaining the demurrer to the cross-complaint. This appeal is from the part of the order sustaining the demurrer of the defendants Harriet M. Cook and H. W. Shattuck as executrix to the cross-complaint of William H. Greer and Ernst P. Butler, copartners doing business as Wisconsin Mantel & Tile Company.H. F. Friedrich, of Milwaukee, for appellants.

M. H. Brand, of Milwaukee, and Frame & Blackstone, of Waukesha, for respondents.

Paul D. Durant, of Milwaukee, for plaintiff.

KERWIN, J. (after stating the facts as above).

[1] Whether the cross-complaint states a cause of action turns upon the construction of the contract between Cook and Holbrook and the realty company, by which the realty company was put in possession of the property for 49 years and 6 months. If this instrument constitutes a lease by which the conventional relation of landlord and tenant was created between the parties, then no lien would attach in favor of the cross-complainants against the lessors upon the allegations of the cross-complaint under the provisions of section 3314, Stats., which provides:

“This section shall not be construed as giving a lien upon the interest of any owner in land where the work or labor is done or material is furnished, or plans or specifications * * * are prepared, at the request of any person holding such land under any contract of lease, demise or contract for sale thereof with such owner, unless there shall also be an express agreement between such owner and the person doing such work or labor or furnishing such material, or preparing such plans, specifications or estimates whereby such owner has agreed to pay for or become responsible for the payment of the same, but such lien shall affect the interest only of the person holding the land under such contract of lease, demise or sale.”

The cross-complaint sets forth at length the terms of this instrument, and we are convinced that it is a lease. It designates the owners of the property, Cook and Holbrook, as lessors and the realty company as lessee, and provides:

“That the parties of the first part for and in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by the said party of the second part have demised and leased, and by these presents do hereby demise and lease unto the said party of the second part, all of lot numbered one (1) in block numbered one hundred seventy-six (176) and all of lot numbered one (1) in block numbered sixty-five (65) except the south ninety (90) feet in width thereof, in the Fourth ward of the city of Milwaukee, county of Milwaukee, state of Wisconsin, subject to a right of way over and across the south ten (10) feet in width of said premises hereby demised and leased; together with all and singular the rights, privileges, easements and appurtenances to the said premises belonging or in any wise appertaining or therewith usually held and enjoyed. To have and to hold the premises hereby demised unto the said party of the second part from the tenth day of April, 1913, for the term of forty-nine (49) years and six (6) months.”

The lease then goes on to provide that the lessee, in consideration of the execution of the lease by the lessors, does covenant and agree to pay all taxes and assessments upon the...