Roseliep v. Herro

• Decision Date: 08 December 1931
• Citation: 206 Wis. 256,239 N.W. 413
• Parties: ROSELIEP v. HERRO ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 256

239 N.W. 413

ROSELIEP

v.HERRO ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from a judgment of the Circuit Court for Milwaukee County, entered on the 7th day of March, 1931, dismissing the cross-complaint of the defendant Heating & Plumbing Finance Corporation; John J. Gregory, Circuit Judge.

Action by Charles H. Roseliep against Charles H. Herro and Nellie (sometimes spelled Nelley) Herro, Heating & Plumbing Finance Corporation, and others, with cross-complaints against the two first named defendants. From the judgment, defendant last named appeals.--[By Editorial Staff.]

Reversed with directions.

This action was commenced by the plaintiff to foreclose a certain mortgage theretofore given to him by the defendants Charles H. Herro and Nellie Herro. Several of the other defendants were owners of mechanics' liens duly filed at the time of the commencement of this action. These defendants cross-complained against the defendants Herro and asked for the foreclosure of their respective liens. One A. F. Leitgabel was a heating contractor who, pursuant to a written contract, had furnished materials and performed labor for installing a heating system in the building owned by the defendants Herro. The work was performed on and between the 17th day of September and the 13th day of November, 1928. On or about the 8th day of November, 1928, the Herros made and delivered to Leitgabel their promissory note in the amount of $3,836, payable in thirty-six equal monthly installments. The note included the amount due on the heating contract and also certain financing charges. The note contained a provision accelerating its due date in case of default in making any installment payment, and also provided for 15 per cent. attorney's fees, if allowed by law, in case it was placed in the hands of an attorney at law for collection. Thereafter a claim for lien was duly filed by Leitgabel. Both the note and the claim for lien were subsequently assigned to the finance corporation. Several installment payments were made before the Herros defaulted. Thereafter action was commenced by the finance corporation against the Herros on the promissory note, and judgment by default was duly entered thereon in the circuit court for Milwaukee county on the 10th day of October, 1930, for $3,593.28, the amount then due on said note, and for the further sum of $547.84 costs, disbursements, and attorney's fees. The finance corporation was not a party originally, but upon its petition it was made a party defendant. It thereupon answered by way of cross-complaint asking foreclosure of the Leitgabel claim for lien which had theretofore been assigned to it. Although the cross-complaint of the finance corporation asked for foreclosure of its lien, it did not demand a deficiency judgment against the Herros, who were legally liable for the amount of the lien claim. The Herros made no answer to the cross-complaint of the finance corporation. Upon the trial of this action, the fact that the finance corporation had theretofore taken judgment against the Herros on its note, as hereinbefore stated, was informally called to the attention of the trial court by exhibiting to it the original judgment roll in that action. Upon having the matter of the former judgment called to its attention, the court evidently felt that the Herros were being unduly burdened by the finance corporation in seeking to have its lien foreclosed when it had already taken judgment on its note including 15 per cent. attorney's fees. The court evidently reached a somewhat hastily considered conclusion which led it to refuse to entertain a brief on the subject. It informed the finance corporation that it could not have two judgments. Thereafter the court made its findings which recited the facts substantially as hereinbefore stated and specifically found as follows: “48. That said defendant, Heating & Plumbing Finance Corporation did by commencing its action upon said note and recovering judgment in such action against said defendants, Charles H. Herro and Nelley Herro, his wife, elect to waive, and did waive its mechanic's lien upon said premises above described and that it would be inequitable and unconscionable for said defendant, Heating & Plumbing Finance Corporation to recover judgment herein against said defendants, Charles H. Herro and Nelley Herro, his wife, for the amount unpaid upon said claim, for which said amount judgment has heretofore been recovered in this court by said defendant in the action hereinbefore mentioned. That said defendant, Heating & Plumbing Finance Corporation should not recover judgment herein against said defendants, Charles H. Herro and Nelley Herro, his wife.”

As a conclusion of law the court found: “7. That there is no sum due said defendant, Heating and Plumbing Finance Corporation, from said defendants, Charles H. Herro and Nelley Herro, his wife, in this action, and that the cross-complaint herein of said defendant, Heating and Plumbing Finance Corporation be dismissed.”

Judgment was thereafter entered in which it was adjudged that the finance corporation, by commencing an action upon its promissory note and by recovering judgment in that action against the defendants Herro, waived its claim for a mechanic's lien, and that it would be inequitable and unconscionable to permit the finance corporation to recover judgment of foreclosure of its lien against the defendants Herro, and that the cross-complaint of the finance corporation be dismissed. From such judgment the finance corporation appealed.Kaumheimer & Kaumheimer, of Milwaukee (Gifford Alt, of Milwaukee, of counsel), for appellant.

Zebulon Pheatt, of Milwaukee, for defendants respondents.

NELSON, J.

The facts in this controversy are not in dispute. The question for decision is whether the court erred in holding that the finance corporation, by taking judgment on its note, waived the right to foreclose its lien. The court held that the entry of judgment on the note by the finance corporation operated as a waiver of its lien as a matter of law, although there is language in the decision of court which indicates that the court may also have thought that the finance corporation, having elected its remedy by bringing action on the note, could not thereafter take the inconsistent position of asking for the foreclosure of its lien.

[1] It has been consistently held by this court that the lien statutes of this state provide new or additional remedies supplementary to the common-law remedies and that such laws should be liberally construed for the purpose of aiding materialmen and laborers to obtain compensation for materials used and services bestowed upon the property of another enhancing its value. Vilas v. McDonough Manufacturing Co., 91 Wis. 607, 65 N. W. 488, 30 L. R. A. 778, 51 Am. St. Rep. 925;Wiedenbeck-Dobelin Co. v. Mahoney, 160 Wis. 641, 152 N. W. 479.

[2]Section 289.05, Stats., provides that the “taking of a promissory note or other evidence of indebtedness for any such work, labor or materials done or furnished shall not discharge the lien therefor hereby given unless expressly received as payment therefor and so specified therein.” Under this statute it is clear, from the well-considered decisions of this court construing it, that the mere giving of a note or other evidence of indebtedness does not in and of itself amount to a waiver. The question of waiver is to be determined by the intention of the parties. Phoenix Mfg. Co. v. McCormick Harvesting Machine Co., 111 Wis. 570, 573, 87 N. W. 458;Carl Miller Lumber Co. v. Meyer, 183 Wis. 360, 365, 196 N. W. 840.

In this action no claim was made by the Herros to the effect that the giving of the note in this case was intended by the parties as a waiver of the lien. No testimony to that effect was offered or received. It is quite apparent that the giving of the note for an amount exceeding the amount due under Leitgabel's contract, which covered financing charges, so as to permit the Herros to pay it in thirty-six equal installments, rather strongly suggests that the lien was to be preserved rather than waived. The note must have been given with the financing charges definitely in mind. With the lien waived the note of the Herros would be wholly unsecured.

[3] While it is no doubt true that a waiver may be implied from facts and conduct of the parties inconsistent with the right to file a lien, such facts, however, must...