Siebrecht v. Hogan
| Decision Date | 03 May 1898 |
| Citation | 75 N.W. 71,99 Wis. 437 |
| Parties | SIEBRECHT v. HOGAN. |
| Court | Wisconsin Supreme Court |
1. The statutory right to a jury trial in an action to enforce a mechanic's or materialman's lien under the Revised Statutes of 1878 is conditional upon a demand being made therefor at or before the time of the commencement of the trial, specifying the particular issue or issues of fact upon which a verdict is required; a failure to make such demand constitutes a waiver of the statutory right. A subsequent submission of issues on the request of either party, against the objection of the other, the same as if the demand, with proper specification of the issues, was made at the proper time, is reversible error.
2. A subcontractor's lien cannot, to the prejudice of the proprietor, be extended so as to cover for work not included in the principal contract as originally drawn or subsequently modified, or to damages for mistakes or negligence of the principal contractor, or breaches of contract on his part.
3. The subcontractor's authority to bind the proprietor's property is referable always to the principal contract. To that extent, but no further, the proprietor is deemed, by force of the statute, to authorize the principal contractor to bind such proprietor's property under the lien laws. That authority does not extend to any claim that is not lienable between the principal contractor and the proprietor.
4. Where a special verdict is required, if any instructions are given as to where the burden of proof rests, the jury should be so informed that they will understand the subject as to each material fact in issue. A general instruction that the burden of proof is where the weight is, and that the general rule that the burden of proof is on the plaintiff does not apply, held to be error.
Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.
Action by Adolph Siebrecht against James J. Hogan and another. Plaintiff had judgment, and Hogan appeals. Reversed.
Action to enforce a subcontractor's lien under chapter 143, Rev. St., and chapter 312, Laws 1885, and the acts amendatory thereof. The complaint is in the usual form. It sets forth in substance, among other things, that defendant Gross was the principal contractor and defendant Hogan the proprietor; that the contract covered the construction of a store building and spice mill on lands described; that plaintiff, as subcontractor, furnished work, labor and material in the construction of such store building to the amount of $2,840, and such spice mill to the amount of $600, and additional work, labor and material, outside of the subcontract, to the amount of $702.59 in the construction of both buildings. The balance claimed to be due was $1,367.29. Defendant Hogan answered, among other things, by admitting that he was the proprietor, and Gross the principal contractor; that plaintiff, as subcontractor under Gross, furnished work, labor and material in the construction of the store building to the amount of $2,500, and of the spice mill to the amount of $500, at the contract price, and furnished other work, labor and material in such construction to the amount of $161.28, as settled and agreed upon between the parties. The answer further alleged that before the commencement of the action, all the transactions between plaintiff and Gross were settled and the amount due agreed upon at $574.73, and that $444.82 was paid to plaintiff after such settlement. At the commencement of the trial a jury was impaneled, but there was no demand by either party, at that time, for the submission of any specific issue or issues to be decided by such jury. At the close of the evidence, defendant's attorneys objected to the submission of any question to the jury, under the statute making the verdict conclusive, because no demand was made therefor at the commencement of the trial. The court decided to allow plaintiff's request for a jury trial the same as if a demand were made therefor at the proper time. Thereupon plaintiff's counsel submitted questions, and defendant's counsel suggested others, whereupon the court prepared a form for a special verdict, covering the suggestions of both sides. The jury determined the issues covered by such special questions, as follows:
(1) The contract price for the main building was $2,500, and for the spice mill $500.
(2) Plaintiff performed extra work and labor for Gross to the value of $600.
(3) Plaintiff and Gross did not settle their accounts and agree upon $574.73 as the balance due plaintiff.
(4) Defendant Gross paid plaintiff upon account of the buildings, prior to the commencement of this action, $2,775.30, and afterwards $371.21 excluding Fuller amount.
(5) Plaintiff performed extra work in removing brick and mortar of the old wall, to the amount of $150; and in removing frozen earth in excavating the cellar, to the amount of $220; also in changing concrete in the basement to the value of $61.
The court filed findings and conclusions of law, adopting the findings of the jury so far as they covered the case. Judgment was entered accordingly in plaintiff's favor, from which defendant Hogan appealed, assigning errors on exceptions to the judge's charge to the jury, on the submission of questions to the jury, on the admission of evidence as to damages caused to plaintiff by the negligence of defendant Gross, and breaches of contract on his part, and as to extra work outside of the contract between Hogan and Gross; also assigned errors on exceptions to the findings of the trial court covering the same subject.
Higbee & Bunge, for appellant.
Bleekman, Bloomingdale & Bergh, for respondent.
MARSHALL, J. (after stating the facts).
The errors assigned and argued on this appeal, that require special mention, may be stated as, (1) granting plaintiff's request to submit issues to the jury, though such request was not made till the close of the evidence; (2) allowing a subcontractor's lien for damages caused by the principal contractor's negligence and breaches of contract, and for extra work not authorized by the principal contract; (3) erroneous instructions in regard to the burden of proof. Such alleged errors will be considered in their order.
1. Actions to enforce mechanics' and materialmen's liens, under the law of this state as it existed at the time of the trial, are suits in equity, with...
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Taylor v. Dall Lead & Zinc Co.
...important cases, in which has been declared the dependency of the subcontractor's lien upon the original contract, are Siebrecht v. Hogan, 99 Wis. 437, 75 N. W. 71, and Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490, and they well illustrate the scope of that rule. In the first of these, a l......
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Terry v. U.S. Fidelity & Guar. Co.
...A. 754; St. Johns, etc., R. Co. v. Bartola & Genaro, 28 Fla. 82, 9 So. 853; Tabor v. Armstrong, 9 Colo. 285, 12 P. 157; Siebrecht v. Hogan, 99 Wis. 437, 75 N.W. 71; Seeman v. Biemann, 108 Wis. 365, 84 N.W. 490. as indicated in American Savings Bank & Trust Co. v. National Surety Co., supra,......
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W. H. Pipkorn Co. v. Tratnik
...contract, and makes his property liable therefor in accordance with the statute, which becomes a part of the contract. Siebrecht v. Hogan, 99 Wis. 437, 441, 75 N. W. 71;Taylor v. Dall Lead & Zinc Co., 131 Wis. 348, 111 N. W. 490. [2] The materials here furnished by the subcontractors consis......
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Seeman v. Biemann
...Co. If that were so, Moody's recovery could only be justified as damages, and damages do not constitute a lienable claim. Siebrecht v. Hogan, 99 Wis. 437, 75 N. W. 71; Kennedy v. Lumber Co., supra. Our conclusion is that Moody's claim must be reduced by the amount allowed Jones for the clos......