Wis. Brick Co. v. Nat'l Sur. Co.

• Decision Date: 16 January 1917
• Citation: 164 Wis. 585,160 N.W. 1044
• Parties: WISCONSIN BRICK CO. v. NATIONAL SURETY CO. ET AL.
• Court: Wisconsin Supreme Court

164 Wis. 585

160 N.W. 1044

WISCONSIN BRICK CO.

v.NATIONAL SURETY CO. ET AL.

Supreme Court of Wisconsin.

Jan. 16, 1917.

Appeal from Circuit Court, Dane County; James Wickham, Judge.

Action by the Wisconsin Brick Company against the National Surety Company and others. From a judgment dismissing the cross-complaint of the Chicago, Milwaukee & St. Paul Railway Company against the National Surety Company, the Railway Company appeals. Affirmed.

The action is brought to recover upon two bonds given pursuant to section 3327a, St. Wis., to the board of regents of the University of Wisconsin by the firm of Grady & Co. as principals and the National Surety Company as surety to insure the carrying out of two contracts by said firm to erect two buildings for the University. The bonds were each conditioned for the payment by the contractor of “all of the claims for work or labor performed and materials furnished in and about the erection or construction of such building to each and every person entitled thereto.” The firm of Grady & Co. defaulted on their contract and went into bankruptcy and the regents took possession of the material and machinery on the ground and completed the building. Grady & Co. were largely indebted to subcontractors and materialmen, and the Wisconsin Brick Company brought this action on the bond against the surety company alone to recover for brick furnished to Grady & Co. for the buildings. Upon petition all laborers and materialmen having unpaid claims against Grady & Co. for work or material on the two buildings were joined as parties defendant and directed to file their claims. Trial by jury was waived, and the issues arising on the various claims were tried by the court. The appellant railway company filed its claim by way of cross-complaint against the surety company to recover the sum of $838.35 for freight charges on materials transported by it over its railroad which materials were admittedly used in the construction of the buildings. The materials aforesaid consisted principally of sand and gravel and were delivered to Grady & Co. upon the premises at the immediate point where they were required for use, upon a temporary side track which the railway company had constructed for the purpose. The facts were undisputed, but the trial court concluded that no part of the claim was “for work or labor performed or materials furnished in or about the erection or construction” of either of the buildings, and dismissed the claim. From this judgment, the railway company appeals.Sanborn & Blake, of Madison (C. H. Van Alstine and H. J. Killilea, both of Milwaukee, of counsel), for appellant.

Richmond, Jackman & Swansen, of Madison, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The question presented is not free from difficulty, but we think the trial court reached the correct conclusion.

The bonds in question were given pursuant to section 3327a, Statutes of Wisconsin. This section provides in substance that all contracts for the building of buildings for the state shall contain a provision “for the payment by the contractor of all claims for labor and material,” and further that no such contract shall be let unless a sufficient bond be given for the faithful performance of the contract “and the payment of all the claims for work or labor performed and material furnished in and about the erection, construction * * * of such building to each and every person entitled thereto.”

This section was first passed in 1899 (chapter 292, Session Laws 1899), and took its place in chapter 143 of the statutes treating of the subject of “Liens” in Sanborn & Sanborn's Supplement to the Wisconsin Statutes published in 1906. It has retained its place in that chapter in all the editions of the general statutes published since that time.

It is quite apparent that it was passed in order that materialmen and laborers employed upon state buildings should not be remediless in case of bankruptcy of the principal contractor. It was well understood that there could be no mechanic's lien on a government building. Wilkinson v. Hoffman, 61 Wis. 637, 21 N. W. 816. It was felt that materialmen and laborers on such buildings were as much entitled to protection as those who furnished materials or labor in the construction...