St. Croix Timber Co. v. Joseph

• Citation: 124 N.W. 1049,142 Wis. 55
• Parties: ST. CROIX TIMBER CO. v. JOSEPH ET AL.
• Decision Date: 22 February 1910
• Court: United States State Supreme Court of Wisconsin

142 Wis. 55

124 N.W. 1049

ST. CROIX TIMBER CO.

v.JOSEPH ET AL.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by the St. Croix Timber Company against Sarkis Joseph and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

Among references cited upon the part of the appellants were the following: Stein v. Benedict, 83 Wis. 603, 53 N. W. 891;Ellis v. S. W. Land Co., 102 Wis. 409, 78 N. W. 583;Richards v. Allis, 82 Wis. 509, 52 N. W. 593;Illinois Steel Co. v. Schroeder, 133 Wis. 561, 113 N. W. 51, 14 L. R. A. (N. S.) 239, 126 Am. St. Rep. 977;Magnuson v. Clithero, 101 Wis. 551, 77 N. W. 882;Munger v. Lenroot, 32 Wis. 541;Turner v. Duchman, 23 Wis. 500;Blake v. Van Tilborg, 21 Wis. 672.

Among references cited upon the part of the respondent were the following: Dobie v. Fidelity C. & C. Co., 95 Wis. 540, 70 N. W. 482, 60 Am. St. Rep. 135;Momsen v. Noyes, 105 Wis. 565, 81 N. W. 860;Goss v. Lester, 1 Wis. 43;Pendleton v. Beyer, 94 Wis. 31, 68 N. W. 415;Smith v. Dickinson, 100 Wis. 574, 76 N. W. 766;Draper v. Brown, 115 Wis. 361, 91 N. W. 1001;Ellis v. Northern Pac., 77 Wis. 114, 45 N. W. 811.

Barnes, J., dissenting.Crownhart & Foley and Dietrich & Dietrich, for appellants.

Luse, Powell & Luse, for respondent.

TIMLIN, J.

After averring that the plaintiff is a foreign corporation licensed to do business in Wisconsin, the complaint set forth in detail the ownership by the David Tozer Company of certain described lands in Wisconsin and Minnesota, and by the plaintiff of certain described lands in Wisconsin. For the purpose of having the timber on these lands cut, hauled, and delivered afloat in the Spruce river during the logging season of 1908-1909, the David Tozer Company made two contracts and the plaintiff one contract with the defendant Sarkis Joseph. The contracts were substantially similar in their covenants and requirements. The two made by Sarkis Joseph with the David Tozer Company were made on October 24, 1908, and that by Sarkis Joseph with the plaintiff on December 26, 1908. Sarkis Joseph, for the purpose of carrying out these contracts, established three camps, two of them for housing and feeding the men and teams necessary to carry out the David Tozer Company contracts, and one for like purposes with reference to all three contracts. The logs from the David Tozer Company land were marked with a certain log mark; those from the plaintiff's land with a different log mark. A quantity of logs was cut and delivered in the Spruce river. The logs from the different camps are there commingled and are now in the Spruce, Tamarack, and St. Croix rivers.

Numerous averments are made tending somewhat to show that Sarkis Joseph performed substantially each of these three contracts. No express averment is found showing the extent to which performance was carried or the number or quantity of logs delivered. But this is not essential with respect to the lien claimants defendant. Under the statutes of this state (St. 1898, §§ 3329-3342b), which give to any person who shall do or perform any labor or services in cutting, hauling, felling, etc., of logs, or timber, etc., a lien upon such material for the amount due or to become due for such labor or services, 11 persons employed by or contractors of Sarkis Joseph filed such liens against these logs so delivered and being in the rivers above described. Among these 11 persons were the defendants M. H. Carroll, who filed a lien for $330, Maggie Carroll for $160.93, Joe Carroll for $83.33, Willie Carroll for $31, and Jennie Carroll for $63.60. These defendants last above named were employed by Sarkis Joseph, and each performed labor and services entitling him or her to a lien on the logs. This labor and service was paid for in part by Sarkis Joseph and the latter also furnished merchandise to these lien claimants for which they owed Sarkis Joseph, and the amount thus owing from each, if applied to or offset against his or her claim for lien, would extinguish such claim. The defendant Hans Wester also filed a lien for $371.44 for the labor and services of himself and his team of horses, part of which has been paid, and Wester is indebted to Sarkis Joseph in such amount that, if this indebtedness were applied in offset of his lien claim the lien claim would be thereby extinguished. E. O. Kreiner has filed a lien for $1,275, which has been paid in part and Kreiner is indebted to Sarkis Joseph in an amount equal to or in excess of the lien claimed and it should be offset against the latter; that, if this be offset or applied in payment, the lien claim of Kreiner will be discharged. James Bailey, contractor, who performed labor and services within the statute, filed a lien for $323.08, and began a suit to foreclose his lien. Sam Genung, under a like contract, performed labor and services on these logs, filed a lien for $196.15, and began action to foreclose this lien. They have been paid in part, and they are each indebted to Sarkis Joseph in an amount which if offset against their respective lien claims would extinguish and discharge such claims. Oscar Norine pursuant to a contract with Sarkis Joseph performed labor and services on these logs and has filed a lien for $287.30. He was paid in part and he is indebted to Sarkis Joseph in an amount which, if offset against his lien, would extinguish the same. Fred A. Hodge, who has filed a lien under this statute for $834.32, performed no labor or service, but furnished certain teams of horses; Hodge not being the owner of said teams, nor employed or working with them. Hodge has been paid in part for furnishing horses, but he has no valid lien or claim for lien against the logs. The David Tozer Company since the making of said contracts with it has paid on account of the contracts to Sarkis Joseph and by his authority to the other defendants herein for services rendered by them an aggregate of about $28,000, which said sum paid Sarkis Joseph for all the work done under said two contracts except $215, which is still due him. The plaintiff paid under its contract to Sarkis Joseph and to the other defendants upon his order $9,504.10, which paid Sarkis Joseph for all the work done on its contract with him except $514.33, which is still due him. This is quite immaterial, except as showing that a balance of $729.33 belonging to Sarkis Joseph remains in plaintiff's hands which should be applied equitably when it can be ascertained how and to whom, and as showing that Sarkis Joseph is not indebted to the plaintiff or the Tozer Company for advances on the contracts mentioned. The Tozer Company and the plaintiff each furnished to the defendant Sarkis Joseph a large amount of supplies consisting of goods, wares, and merchandise, provisions, and horse feed for the boarding of the men and teams at the several camps, and neither the Tozer Company nor the plaintiff had any accurate means of knowing whether these supplies were all delivered or used or consumed at the camps where the work of putting in the logs was in progress. Sarkis Joseph fraudulently misappropriated a large amount of said supplies. About April or May, 1909, he became insolvent. Notwithstanding Joseph had fully paid the defendants for their work on the logs by way of money, supplies, and goods and by indebtedness owing by them and each of them to him, he conspired with said lien claimants to conceal these credits, and to file and prosecute claims for liens against the logs in question which were false and unfounded, and to enforce these claims and collect them, and turn the avails over in whole or in part to Sarkis Joseph. The logs in question are all commingled, and are in the counties of Douglas, Burnett, Polk, and St. Croix. The David Tozer Company sold and transferred all its logs to the plaintiff, and, in connection therewith, transferred any and all rights of action with reference thereto and upon the contracts in question, and all claims in any wise growing out of said contracts against Sarkis Joseph or any person claiming by, through, or under him, etc. Two of the lien claimants have already commenced actions for the foreclosure of their liens, and the others threaten and intend so to do. The lien claimants jointly demurred to the foregoing complaint on the ground that it did not state facts sufficient to constitute a cause of action against them and also for misjoinder of causes of action. The defendant Sarkis Joseph and the defendant Charles Domitt each separately demurred on the same grounds.

It is an elementary rule of equity jurisprudence that, where the jurisdiction...