Spruhen v. Stout

• Decision Date: 04 June 1881
• Citation: 52 Wis. 517,9 N.W. 277
• Parties: SPRUHEN v. STOUT AND OTHERS.
• Court: Wisconsin Supreme Court

52 Wis. 517

9 N.W. 277

SPRUHEN

v.STOUT AND OTHERS.

Supreme Court of Wisconsin.

Filed June 4, 1881.

Appeal from circuit court, Chippewa county.Jenkins & Boland and Bartlett & Hayden, for respondent.

Wheeler & Marshall and Bingham & Pierce, for appellants.

COLE, C. J.

There is ample justification in the record for giving the plaintiff a lien upon the flouring-mill for the amount due him on his account. There is no controversy about the number of days he worked, or as to the value of his services; but it is insisted upon the part of the appellants that the evidence shows that the plaintiff worked a part of the time for Newton individually and a part of the time for the company, and that several payments were made on his account. And the contention of counsel is that these payments were made on behalf of the firm by Newton, and should be appropriated to the discharge of the partnership debt, and could not be applied to the payment of work performed for Newton individually. The evidence shows that the plaintiff was employed by Newton and set to work in getting out brick from the old Fremont ruins. It is a fact clearly established that much of this brick thus got out was actually used in the construction of the firm's mill. But it is said that these brick really belonged to Newton, were his individual property sold to the firm, therefore the partnership ought not to be charged with the plaintiff's services while getting them out. Conceding this to be so, that the brick were really Newton's property, still, we think the law would give the plaintiff a lien upon the mill for the work performed by him in getting out brick which were used in its construction. The plaintiff, while thus employed, would be deemed a laborer engaged in aiding in the erection of the mill and providing materials for the same, within the spirit and intent of the statute. Chapter 153, Tay. Rev. St.

About this there would seem to be no ground for doubt. But, however this may be, it appears that the plaintiff was not informed, nor did he know, that he was working at any time for Newton, individually, if such were the fact. He doubtless supposed and had the right to conclude he was in the employ of the firm all the time. Nor had he any means of knowing that the brick in the Fremont ruins did not belong to the partnership. He worked all the time as directed by Newton under the same engagement, sometimes on the mill and sometimes in getting out brick. What portion of his time was taken up in getting out brick which did not actually go into the mill, but were sold to other parties, it is impossible to tell from the evidence. And when Newton made payments on the account he did not intimate or inform the plaintiff that part of the items in the account only were partnership debts, and that the payments must be applied in discharge of those items. When, then, at the trial it was claimed that a part of the work was performed for Newton individually, and the plaintiff declared his election to apply the payments already made to the discharge of that debt, we do not think it was error on the part of the referee and court to permit him to make such an application; for, as we have said, the plaintiff had the right under the circumstances to suppose he was working for the firm all the time under the same contract of hiring. Having been employed by Newton in the first instance, working as directed by him, now on the mill, then in getting out brick from the Fremont ruins, without notice from any one that any of his work was the individual concern of Newton, the plaintiff had the right to assume he was in the employ of the partnership all the time. It was certainly in the power of the partners to undeceive him in that regard, and let him know what were partnership concerns and what not. The plaintiff surely could not know about the private arrangements of the partners, or what was an individual matter. Apparently he was in the service of the partnership all the time, and had the right to look to the firm for the pay of all his services.

2. The next question relates to the lien of Stout & Mills. In respect to that, counsel for the appellants insists that the time limited by law for them to file their claim for a lien for machinery and articles furnished for the mill had expired before such lien was filed. This position is based upon the assumption that the claim of Stout & Mills, except as to the two items furnished in November, 1878, is for an indebtedness which accrued under a special contract bearing date March 15, 1878. It is claimed by counsel that all of the articles...