Willer v. Bergenthal
| Decision Date | 30 November 1880 |
| Citation | 7 N.W. 352,50 Wis. 474 |
| Parties | WILLER v. BERGENTHAL, imp |
| Court | Wisconsin Supreme Court |
Argued November 13, 1880
APPEAL from the Circuit Court for Milwaukee County.
This was an action under the statute (R. S., ch. 143) to foreclose a lien for an alleged balance due the plaintiff for materials furnished to and labor performed by him for the defendant, in the erection of a dwelling-house on certain premises described in the complaint, in the city of Milwaukee. The complaint is in the usual form of complaints in such actions except that it fails to state specifically the date of furnishing the last item in the account. It alleges that the petition for a lien was filed on or about July 6, 1878, and within six months from the date of the last charge for the work and materials. It further alleges a settlement between the parties afterwards, an adjustment of the balance due the plaintiff at $ 600, and that the defendant gave the plaintiff his promissory note therefor, payable in thirty days. It also contains an offer to surrender the note for cancellation, and on the trial the note was brought into court for that purpose. A demurrer was interposed to the complaint, and overruled; and thereupon the defendant Bergenthal answered denying generally all the facts averred in the complaint except the giving of the note.
When the cause was called for trial, a jury was impanelled and sworn, but it does not appear that either party demanded a jury. On the trial, the plaintiff read in evidence the petition for a lien, to which is attached an itemized account. An indorsement of the clerk thereon shows that it was filed in the proper office May 6, 1878. He also proved that the last item in his account accrued November 27, 1877. That item is as follows: The next preceding item is dated October 31, 1877.
The testimony on the part of the plaintiff tended to show that one Herr, who had contracted with Bergenthal to build the house, applied to the plaintiff to furnish materials and do work on the house, but that the latter refused to do so because of Herr's pecuniary irresponsibility; that thereupon, and before the plaintiff had done any of the work or furnished any materials, Bergenthal agreed with the plaintiff to pay him therefor if he would do the work and furnish the materials; and that he did so under that agreement. The only question litigated on the trial was whether such agreement was entered into by Bergenthal.
It was proved that Herr failed to perform his contract with Bergenthal, and one Miller finished the job. A considerable portion of the plaintiff's account accrued after Herr had abandoned the job, and there was no contract between Miller and the plaintiff concerning the work done and materials furnished by the latter. After Miller had fulfilled Herr's contract, he and Bergenthal settled, and the latter kept back $ 600 from the contract price for the plaintiff, and paid Miller the balance only.
In all other respects the plaintiff proved a case entitling him to the relief demanded. The court directed the jury to assess the amount due the plaintiff at a sum equal to the amount due on the note for $ 600, which was accordingly done. After denying a motion for a new trial, the court gave judgment in the usual form for a foreclosure of the lien, a sale of the property, and the payment to plaintiff, out of the proceeds of the amount due him, etc. No findings of fact were filed. Bergenthal appealed from the judgment.
Judgment affirmed.
James Hickox, for appellant, argued thus, inter alia: 1. The complaint is defective in not setting forth the last date upon which work was done or material furnished. R. S., sec. 3322. 2. The last material was proven to have been furnished November 27, 1877. To preserve the lien, the petition must have been filed within six months. R. S., sec. 3318. The complaint alleges the petition to have been filed July 6, 1878, and there was no proof of an earlier filing. 3. The case was one to be tried by the court, but was tried by a jury. The verdict could only entitle the plaintiff to a money judgment. The complaint demanded no more. Judgment for a sale of the premises was therefore erroneous. 4. The complaint does not state, nor did the proof show, that the defendant was the owner in fee of the premises at the time the work was done and material furnished.
For the respondent there was a brief by Nath. Pereles & Sons, his attorneys, with R. N. Austin of counsel, and oral argument by Mr. Austin.
1. It was held in Marsh v. Fraser, 27 Wis. 596, that an action to enforce a lien, brought under chapter 153, R. S 1858, was an action at law. But the late revision (chapter 143) has entirely changed the character of the action, by removing therefrom nearly every feature of a legal action, and substituting therefor all of the essential characteristics of a suit in equity. The present statute denominates the action as one to foreclose a lien (section 3321), and the procedure to judgment is very similar to that in an action to foreclose a mortgage. Formerly, the creditor who first filed his lien obtained a priority over other lien creditors. Hall v. Hinckley, 32 Wis. 362. Now he does not. A subsequent lien creditor may be made a party to an action by a prior lien creditor, and share with him pro rata in the proceeds of the sale. R. S., secs. 3321, 3324 and 3325. Formerly, also, a personal...
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