Superior Plumbing Co. v. Tefs

• Decision Date: 27 April 1965
• Citation: 134 N.W.2d 430,27 Wis.2d 434
• Parties: SUPERIOR PLUMBING CO., Inc., a Wis. corporation, Respondent, v. William TEFS, Appellant.
• Court: Wisconsin Supreme Court

Page 430

134 N.W.2d 430

27 Wis.2d 434

SUPERIOR PLUMBING CO., Inc., a Wis. corporation, Respondent, v. William TEFS, Appellant.

Supreme Court of Wisconsin.

April 27, 1965.

Herbert A. Eggie, Milwaukee, for appellant.

Irving D. Gaines, Milwaukee, Paul E. Sicula, Milwaukee, for counsel, for respondent.

BEILFUSS, Justice.

The owner, defendant-appellant, contends that the complaint does not state facts sufficient to state a cause of action; the subcontractor, plaintiff-respondent, asserts it states a cause of action for unjust enrichment.

The complaint does not allege an express contract between the owner and the subcontractor; nor does it make reference to the filing or prosecution of a subcontractor's lien as provided by sec. 289.02, Stats.

The defendant relies upon the decisions of this court in Utschig v. McClone (1962), 16 Wis.2d 506, 114 N.W.2d 854, and Limbach v. Schmalz (1932), 208 Wis. 396, 243 N.W. 480.

In the Utschig Case we stated, 16 Wis.2d at page 508, 114 N.W.2d at page 855:

'Appellant's major argument on this appeal is that a subcontractor cannot obtain direct relief against a property owner except on an express contract. Since no express contract existed here, appellant contends that the requisite privity is lacking and the subcontractor's remedies must be against his principal.

'In Ponti v. Eckels (1906), 129 Wis. 26, 28, 108 N.W. 62, 63, we held that a personal judgment against the property owner was erroneous as 'there is no pretense either in allegation or proof of any privity between the owner and the subcontractors, or of any promise by the former to pay the latter, from which could result personal liability.'

'In Limbach v. Schmalz (1932), 208 Wis. 396, 398, 243 N.W. 480, 481, we said:

"One under contract to render services must look to his employer for compensation, unless in a proper case he has availed himself of the auxiliary remedy of a laborer's or mechanic's lien, secured a valid written promise of another to pay the employer's debt, or a novation has been made and a new debtor substituted. * * *'

'17 C.J.S. Contracts § 370, p. 839, states that subcontractors must resort for payment to the principal contractor, as in the absence of an express contract there is no privity between a subcontractor employed by a general building contractor and the owner and the liability of the owner is only to the general contractor who is liable to the subcontractor. 12 Am.Jur., Contracts, sec. 7, p. 505, takes the same position, saying that the owner is not liable as on an implied contract simply because he has received services or goods.'

And at page 509, 114 N.W.2d at page 856, we said:

'By the subcontractors' lien statutes, sec. 289.02, Stats., and following, the law has offered security and protection to a subcontractor. His failure to avail himself of the remedy so provided does not produce for him a right to recover payment directly from an owner who did not employ him with whom he had no contract. Of course the subcontractor retains his right to proceed against the party who employed him.'

The plaintiff argues that the Utschig and Limbach Cases must be distinguished and limited for the reason that unjust enrichment was neither claimed by the subcontractor nor considered by the court. It contends that Kelley Lumber Co. v. Woelfel (1957), 1 Wis.2d 390, 83 N.W.2d 872, and Nelson v. Preston (1952), 262 Wis. 547, 55 N.W.2d 918, recognize the availability of the common law remedy of unjust enrichment and those cases rule this appeal.

In the Kelley Case we said, 1 Wis.2d at pages 391, 392, 83 N.W.2d at page 873:

'The circuit court concluded that the facts alleged in the complaint include the essential elements of quasi contract as set forth in Nelson v. Preston, 1952, 262 Wis. 547, 55 N.W.2d 918. These are listed (262) Wis. at page 550, 55 N.W.2d at page 920):

"1. A benefit conferred upon the defendant by the plaintiff;

"2. Appreciation by the defendant of the fact of such benefit;

"3. Acceptance and retention by the defendant of such benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof.'

"In Nelson v. Preston, the plaintiff furnished services and materials for the construction of houses on lots owned by defendant. The services and materials were ordered by defendant's son, who was not an owner of the property and was not the agent of defendant, but had some interest in the houses under construction. ...