Vilas v. McDonough Manuf'g Co.

• Decision Date: 17 December 1895
• Citation: 91 Wis. 607,65 N.W. 488
• Parties: VILAS v. MCDONOUGH MANUF'G CO.
• Court: Wisconsin Supreme Court

91 Wis. 607

65 N.W. 488

VILAS

v.MCDONOUGH MANUF'G CO.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by William F. Vilas against the McDonough Manufacturing Company, Donald A. Kennedy, and others, to foreclose a mortgage executed to plaintiff by defendant Kennedy. From a judgment declaring the lien of plaintiff's mortgage prior and paramount to the lien of the McDonough Manufacturing Company for machinery furnished the mortgagor, and placed in the property mortgaged, such company appeals. Reversed.

This is an action to foreclose a mortgage on a lumber mill and other property in the city of Ashland. On the 31st day of December, 1890, the plaintiff lent to one Donald A. Kennedy, who was then the owner of the mill and land, $10,000, and took a mortgage thereon, dated the same day, and recorded on the 10th day of January, 1891, for security for its repayment. Before making the loan, the plaintiff made inquiry as to the title to the property, and as to incumbrances upon it, and was assured that there was no lien or incumbrance upon the property, and that there was no outstanding contract wherefrom any lien or incumbrance could arise. Kennedy had recently built the mill, which was still unfinished, and substantially without machinery. Afterwards he put in it machinery which he bought of the appellant. The appellant is a manufacturer of sawmill machinery, at Eau Claire, Wis. Between the 14th day of February, 1891, and the 4th day of May, 1891, it manufactured for, and sold and delivered to, Kennedy, sawmill machinery to the amount and value of $5,259.25, which was put into the mill, and became a part thereof. This machinery was manufactured and furnished to Kennedy pursuant to a verbal order or agreement made about November 5, 1890, whereby appellant agreed to manufacture the machinery, and ship it as ordered. The appellant commenced immediately to manufacture the machinery, and had some of it completed before the date of plaintiff's mortgage, and manufactured and shipped it all as ordered and previously agreed upon. The appellant filed its petition for a mechanic's lien October 26, 1891, claiming $4,259.25. The plaintiff made the appellant and other lien claimants defendants in his foreclosure action. The appellant set up its claim of lien, which it claimed to be prior and paramount to the lien of plaintiff's mortgage. The trial court decided against this claim, holding the plaintiff's mortgage to be the prior and paramount lien, and gave judgment accordingly. From this judgment the appeal is taken.T. F. Frawley, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

NEWMAN, J. (after stating the facts).

The question is whether the appellant's lien for machinery supplied to Kennedy's mill, after the date of the execution of the plaintiff's mortgage upon the mill property, is prior and paramount to the lien of the mortgage. This question must be determined upon the proper interpretation of the statute which gives the lien. It is section 3314 of the Revised Statutes. So far as material to the question to be decided, it reads as follows: “Every person who, as principal contractor, architect, civil engineer or surveyor, performs any work or labor, furnishes any materials, or prepares any plans or estimates for, in or about the erection, construction, repair or removal of any dwelling house or other building, or any machinery erected or constructed so as to be, or become a part of the freehold upon which it is situated, * * * shall have a lien thereupon, and upon the interest of the owner of such dwelling house, building, machinery * * * in and to the land upon which the same is situated. * * * Such lien shall be prior to any other lien which originates subsequent to the commencement of the construction * * * or work aforesaid of, or upon such dwelling house, building, machinery, * * * and shall also attach to and be a lien upon the real property of any person on whose premises such improvements are made.” The object of the interpretation of a statute is to ascertain what the legislature intended to accomplishby it. When that intention is ascertained, that is the law. Statutes giving what are called “mechanics' liens” provide new remedies not given by the common law. They are supplementary to the common law, and remedial in their nature, and are to be fairly, even liberally, interpreted, so as to make the remedial purpose of the legislature effectual. The statute recited above, so far as relates to the question involved, gives liens in two classes of cases. It gives liens to persons who furnish materials for the construction of buildings, and to persons who erect machinery on the lands of others. The latter case is not included in the former, but is supplementary or additional to it. It provides for cases which are not within the former provision. The mechanic's lien statute, as at first enacted and in force, had only the former provision. The latter was subsequently added for the purpose of including within the benefits of the statute cases not already within it. While the statute as it now stands, with both cases included within it, was re-enacted as a whole in the revision of 1878, it, no doubt, bears the same interpretation as if the two provisions were contained in separate statutes. The case of one who furnishes the machinery for the construction of a new mill is the case of one who furnishes materials for the construction of a building. The machinery, when attached, becomes a part of the building, and is real estate. The building without the machinery is no mill. The building with the machinery attached becomes a mill, but still is described by the generic term “building.” It is subject to the liens which the statute gives to such as furnish materials for the construction of a building. This seems to be elementary, and to require no amplification. But it may be confirmed by citation of authority. Phil. Mech. Liens (3d Ed.) § 177, says: “Fixtures, machinery, etc., when necessary to the original purpose of the structure, and erected with it, may become responsible to the lien, when they would not otherwise have been without express enactment, if put up independently. As between the owner and the mechanic, everything put into and forming a part of a building, or machinery for manufacturing purposes, and essential to the manufactory, is a part of the freehold, as wheels in a mill, etc., * * * and are subject to the mechanic's lien law.” In Summerville v. Wann, 37 Pa. St. 182, it was held that a statute which provides that “every building erected * * * shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the same” gives a lien against the building for engines and machinery constituting a part of a new mill. In Dimmick v. Cook & Co., 115 Pa. St. 573, 8 Atl. 627, it was held, under the same statute, that a lien was given on a new hotel for furnishing such articles for its construction as “heating, laundry, and cooking apparatus.” In Dickey's Appeal, 115 Pa. St. 73, 7 Atl. 577, it was held that a battery of boilers, imbedded in brick and stone and mortar, a funnel chimney or stack, built on firm foundation, and extending through the roof, the engines, cranes, wire mills, furnace trains, and other fixtures firmly attached to the realty, all a part of the realty, and all together constituting one plant, are all part of the building, within the meaning of the law which gives a lien upon the building for materials furnished in its construction. So, it must be considered that the appellant has a right to a lien upon the mill building and the freehold, as one who has furnished materials for its construction. It is within the former class,--a lien upon the building itself. Being a lien upon the building itself, it is not a lien upon machinery otherwise provided for. This being established, there is little occasion to consider what cases come within that provision which gives a lien to the person who erects machinery on the lands of another. Probably it will be found that all are cases...