Wis. Planing-Mill Co. v. Schuda

• Decision Date: 09 October 1888
• Citation: 39 N.W. 558,72 Wis. 277
• Parties: WISCONSIN PLANING-MILL CO. v. SCHUDA ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 277

39 N.W. 558

WISCONSIN PLANING-MILL CO.

v.SCHUDA ET AL.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

This action was brought under the statute (Rev. St. c. 143) to enforce a lien upon a building, and the lot upon which it was erected, for the price of certain lumber furnished by the plaintiff company, and used in the erection of such building. The right of action is founded upon the proposition that the defendants, the Schudas, were the purchasers of the lumber. No attempt is here made to enforce the lien of a subcontractor. The defendant, the Joseph Schlitz Brewing Company, holds a mortgage upon such real estate, executed to it by the Schudas, who own the property in fee as joint tenants. All of the defendants answered, denying that the Schudas purchased the lumber in question of the plaintiff, and alleging that the same was purchased by one Mrozinski, who, it is conceded, had theretofore duly entered into a contract with the Schudas to do all the carpenter work in the erection of such building, and to furnish all materials therefor. The plaintiff claims that it refused to sell the lumber to Mrozinski, and, upon such refusal, that the Schudas made the purchase on their own account, without reference to their contract with Mrozinski. This is the only issue going to the right of action; it being conceded that, if the Schudas were the purchasers of the lumber, the plaintiff is entitled to a lien for its price or value upon their interest in the real estate in question. On the trial of the cause this issue was found for the defendants; that is to say, the court found that the Schudas are not, nor is either of them, indebted to the plaintiff “as an original or principal contractor, in any sum whatever.” The defendant the brewing company further answered that it made a loan of $5,000 to the defendants Schudas for the sole and only purpose of paying for the erection of the building in question, and that to secure the loan the Schudas executed and delivered to it, on April 26, 1887, a mortgage upon the real estate described in the complaint, which mortgage was duly recorded April 27, 1887. Also that it was agreed, when the mortgage was executed, that the $5,000 should be retained by the company, and paid out by it from time to time, as the building progressed, for labor performed thereon, and materials furnished therefor. That under such agreement the company paid out $4,175 for such labor and materials between May 8, and July 31, 1887, and has not paid out the balance of the $5,000, because it has been summoned as garnishee of the Schudas. It is further alleged in such answer that the mortgage was executed before the commencement of any work on said building. The court found as a conclusion of law that the mortgage to the brewing company “is a lien upon said premises for the amount advanced thereon, prior to any lien for work done, or materials furnished, in the erection and construction of said building.” A sufficient statement of the testimony given on the trial will be found in the opinion. The plaintiff appeals from a judgment dismissing the complaint.Rogers & Mann, for appellant.

Clarke & McAuliffe and Walber & Wahl, for respondents.

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

1. Upon the controlling question of fact in the case, to-wit, were the Schudas the original or principal purchasersof the lumber in question? the testimony is in direct conflict. It does not so strongly and clearly preponderate either way as to justify this court in disturbing a finding of the learned circuit judge in that behalf, whether the same be for the plaintiff or the defendants. The conflicting testimony being so nearly balanced, it is important that the plaintiff--the party against whom the issue was found--should have the benefit of all legal testimony which it offered to introduce.

During the trial the plaintiff propounded to Lindley Collins, a witness called by it, this question: “Have you ever had any conversation with the defendant Schuda in regard to the claim of the Wisconsin Planing-Mill Company?” The court sustained an objection to the question. Counsel for plaintiff then offered to prove by the witness that defendant August Schuda admitted to him that he was bound to pay the plaintiff's claim herein. The offer was rejected “as being an offer of evidence in rebuttal and in impeachment, for which no sufficient foundation has been laid.” We do not stop to inquire whether or not any sufficient foundation was laid for an impeachment of Schuda, although he was interrogated on the subject, and denied making any such statement to Collins. However that may be, the offered testimony was competent as evidence...