Utschig v. McClone

• Decision Date: 01 May 1962
• Citation: 114 N.W.2d 854,16 Wis.2d 506
• Parties: Laurence S. UTSCHIG, d/b/a L. S. Utschig Construction Co., Plaintiff-Respondent, v. Raymond McCLONE, d/b/a Winnebagoland Homes, Defendant-Respondent, Carl W. Kramer et al., Appellants.
• Court: Wisconsin Supreme Court

Page 854

114 N.W.2d 854

16 Wis.2d 506

Laurence S. UTSCHIG, d/b/a L. S. Utschig Construction Co. Plaintiff-Respondent, v. Raymond McCLONE, d/b/a Winnebagoland Homes, Defendant-Respondent Carl W. Kramer et al., Appellants.

Supreme Court of Wisconsin.

May 1, 1962.

Defendant Kramer demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action against Kramer. The trial court overruled the demurrer. Kramer appeals.

The facts are given in the opinion.

Dudek & Banholzer, Milwaukee, Robert A. Slattery, Milwaukee, of counsel, for appellant.

George T. Stine, L. R. Johnson, Menasha, for respondent.

BROWN, Justice.

Plaintiff-respondent Utschig brought suit against defendant McClone and defendant-appellant Kramer to recover $2,053.58 allegedly due for masonry work performed and materials furnished. This includes a claim for certain extras amounting to $258.18. The complaint alleges that defendant McClone, as principal contractor, entered into an agreement to construct a home for appellant-defendant Kramer and McClone then employed Utschig as subcontractor to perform the masonry work. The complaint alleges that Utschig performed this work, demanded payment and that both McClone, as principal contractor, and Kramer, the homeowner, have refused to pay.

The complaint further avers that Kramer knowingly accepted and retained the improvements. Kramer also informed plaintiff that funds were available from a loan to pay for plaintiff's material and labor, but because of a dispute between Kramer and McClone, the former refused to authorize payment of the amount due Utschig and withdrew the funds remaining in the loan account and has 'refused to pay the amount due to said principal contractor or to plaintiff as subcontractor.'

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...