W. H. Pipkorn Co. v. Tratnik

• Decision Date: 13 April 1915
• Citation: 161 Wis. 91,152 N.W. 141
• Parties: W. H. PIPKORN CO. v. TRATNIK ET AL.
• Court: Wisconsin Supreme Court

161 Wis. 91

152 N.W. 141

W. H. PIPKORN CO.

v.TRATNIK ET AL.

Supreme Court of Wisconsin.

April 13, 1915.

Siebecker and Kerwin, JJ., dissenting.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by the W. H. Pipkorn Company against Joseph Tratnik and others. From a judgment in favor of plaintiff and the other defendants, the defendant Tratnik and wife appeal. Affirmed as to Tratnik, and reversed as to his wife, and remanded.

Plaintiff brought this action as a subcontractor of the defendant Granite Sidewalk Company to enforce a claim for mechanic's lien against the defendants Joseph and Mary Tratnik. The complaint alleged that the Granite Sidewalk Company was a principal contractor employed by the defendant Joseph Tratnik for the construction of the walls of the basement and other cement and concrete work on a certain building to be erected upon the property of the defendant Tratnik; that plaintiff, as a subcontractor of the Granite Sidewalk Company, furnished building materials to be used in the construction of said walls and building, and that there was still due the plaintiff from said defendant the sum of $284.83. The other defendants, Lake Shore Stone Company, Arthur J. Rieske, Sands Lumber Company, and P. J. Lavies & Co., subcontractors and materialmen, served cross-complaints for their respective claims to enforce same under the mechanic's lien statute.

The answer of the defendants Tratnik alleged, among other things, that the work done in the construction of said walls by the Granite Sidewalk Company was performed in such an unsatisfactory, improper, and unsafe manner that it was condemned by the building inspector of the city of Milwaukee, and was never accepted by the defendants Tratnik or by the architect and superintendent of said building, to whose satisfaction under the terms of the contract the work was to be performed; that numerous notices were served upon the Granite Sidewalk Company requesting them to perform the work in compliance with the terms of the contract, and that it failed, neglected, and refused to do so, and that the defendants were obliged to have the entire work torn down and removed,and to have said walls and other work provided for in the contract reconstructed, at a cost of $1,950.

Judgment was entered in favor of the plaintiff, adjudging a subcontractor's lien against the property of the defendants Joseph and Mary Tratnik, and in favor of the various other subcontractors named as defendants herein for the amounts claimed by them for materials furnished. From such judgment this appeal is taken.

Doerfler, Green & Bender, of Milwaukee, for appellants.

James T. Drought, Henry J. Otjen and Lorenz & Lorenz, all of Milwaukee (Ira S. Lorenz, of Milwaukee, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

[1] It is not improbable that the owner of the premises involved and the subcontractors are innocent of any wrong. If so, one or the other must suffer for the default of the principal contractor, and the question is: Which? The owner could have protected himself in the first instance by dealing with a responsible party, or else by requiring an adequate bond. But there were also means open to the subcontractors to protect themselves.

The relation between owner, principal contractor, and subcontractor has been pretty well settled by this court. The principal contractor is the agent of the owner to purchase the materials required by the principal contract. The owner consents that the principal contractor may do what is necessary to carry out the principal contract, and makes his property liable therefor in accordance with the statute, which becomes a part of the contract. Siebrecht v. Hogan, 99 Wis. 437, 441, 75 N. W. 71;Taylor v. Dall Lead & Zinc Co., 131 Wis. 348, 111 N. W. 490.

[2] The materials here furnished by the subcontractors consisted of crushed stone, lumber for falsework in basement walls, gravel, cement, and flue linings for chimneys, and elbows and galvanized iron. There is no claim that the material was not such as the principal contract called for and as the principal contractor was required to furnish under his contract. The court expressly found that the materials furnished by the subcontractors were of a merchantable quality and in accordance with the contract entered into between the owner and the principal contractor. The court further found that the necessity for tearing out the walls was due to improper method of construction, and not because of the material used being defective.

As far as the rights of the subcontractors are concerned, it can make no difference whether the owner himself contracted for the materials or his duly authorized agent did so. The owner is responsible for the authorized acts of his agent, the principal contractor, to the same extent that he would be liable had he done the acts himself.

The real question therefore is: Would the subcontractors have a lien if the material had been purchased by the owner and had been wrought into the walls by the servants or contractors of the owner, but by reason of poor workmanship the walls had to be removed and the material destroyed? This court has held that, where a principal contractor delivers material on the ground to be used in the erection of a building, he is entitled to a lien, although the owner sells the material and it is used elsewhere. Esslinger v. Huebner, 22 Wis. 632. It is so ruled in Fitzgerald v. Walsh, 107 Wis. 92, 98, 82 N. W. 717, 81 Am. St. Rep. 824, and in Spruhen v. Stout, 52 Wis. 517, 9 N. W. 277, and these cases are approved in Francis & Nygren F. Co. v. King Knob C. Co., 142 Wis. 622, 126 N. W. 39. The destruction of the material delivered was no more complete in the instant case than it was in Halsey v. Waukesha Springs S. Co., 125 Wis. 311, 104 N. W. 94, 110 Am. St. Rep. 838, where the building was destroyed by fire, and where it was held that the right of lien existed for the burned material. As the court there points out, a mechanic's lien may fasten on land before any building or structure exists thereon, and, if so, “it may persist after any such structure disappears.”

In Fitzgerald v. Walsh, supra, an architect was allowed a lien on the land on which a building was to be erected, although the construction was abandoned after the excavation was made.

It has also been held that the fact that the principal contractor has not complied with the conditions of his contract so as to enable him to enforce a lien on the building will not militate against the subcontractor enforcing such a lien if the subject of the subcontractor's lien might in any event be lienable in favor of the principal contractor. Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490.

There is no conflict between the cases cited and Houlahan v. Clark, 110 Wis. 43, 85 N. W. 676. There the principal contractor was held not to be the agent of the owner, because he did not build the kind of a structure which his contract called for, nor at the place the contract called for. The contractor was acting without the scope of his authority in doing what he did, and his acts were therefore held not to be binding on his principal. Here the contractor was acting strictly within his authority in purchasing the materials which were delivered by the lien claimants. His default occurred in improperly using such materials. It seems clear that the materialmen are no more affected by the default of the owner's agent in this regard than they would be had the owner himself made the improper use of the materials. It is clear that, had the owner himself purchased the material in question to be used in the basement walls, and it was so used by the contractor, a right of lien would attach to the land, although the construction, because of poor workmanship, became worthless. If so, we see no escape from the proposition that the same result would follow where the purchase of the material was made by an agent acting within the scope of his authority in purchasing the material.

[3] Mary Tratnik was evidently made a party defendant for the purpose of barring her inchoate right of dower. It was neither proven nor found that she knew the improvement in question was being made, or that she consented thereto. We do not think the mechanic's lien statute was intended to reach an inchoate dower right and cut it off as a matter of course whenever the interest of the husband owner was cut off. If Joseph Tratnik should die before his wife, the judgment would bar her dower right in the property, provided it was sold to pay the lien claims. In this respect it is erroneous. Phillips on Mechanics' Liens (3d Ed.) § 195.

Judgment affirmed as to Joseph Tratnik, and reversed as to Mary Tratnik, and cause remanded for further proceedings according to law.

TIMLIN, J., took no part.

KERWIN, J. (dissenting).

The facts are undisputed. The Granite Sidewalk Company, principal contractor, was employed by appellant Joseph Tratnik to construct basement walls of cement upon his property. The plaintiff furnished to the Granite Sidewalk Company, principal contractor, for such work, cement which was used by the principal contractor in a structure on the appellant's property, which afterwards, on account of improper construction, was condemned by the city inspector and ordered torn out, and was torn out and removed, because not in compliance with the city ordinance or contract with...