Wis. Planing-Mill Co. v. Grams

• Decision Date: 09 October 1888
• Citation: 72 Wis. 275,39 N.W. 531
• Parties: WISCONSIN PLANING-MILL CO. v. GRAMS.
• Court: Wisconsin Supreme Court

72 Wis. 275

39 N.W. 531

WISCONSIN PLANING-MILL CO.

v.GRAMS.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Milwaukee county.

Action by the Wisconsin Planing-Mill Company against Mary Grams to subject certain described premises to a mechanic's lien. There was a judgment for plaintiff, and defendant appeals.Clarke & McAuliffe, for appellant.

Rogers & Mann, for respondent.

COLE, C. J.

It was admitted on the trial that the defendant was the owner of the premises against which a mechanic's lien was sought to be obtained; that her husband, Francis S. Grams, was authorized as agent to act for her. The circuit court found that the defendant, as principal contractor, through her agent, contracted for and purchased from the plaintiff the lumber and building materials in question, which were used in the construction and erection of the house on the lot described. This finding is amply supported by the testimony. The evidence shows quite clearly and satisfactorily that the agents of the plaintiff sold the lumber to the owner of the building, and that Francis S. Grams purchased it for his wife, and agreed to be responsible for its payment. It is said that Czerwinski was the contractor who had agreed to build the house, and furnish all the material and labor therefor, and that the plaintiff sold the lumber to him. But it is very clearly proven that the plaintiff refused to trust Czerwinski for the lumber, and required other security or a more responsible party before it would furnish it for the building. Then the defendant, by her agent, as the court finds, purchased it, and it was delivered to her, and was actually used in the construction of the house. It is not attempted to hold her on the ground that she became responsible for the debt of Czerwinski, but upon her original promise or undertaking. This is the manifest theory of the action. There is no question under the statute of frauds in the case. The purchase must be deemed to have been that of the defendant, as the court finds, and as the proof shows, and was sold exclusively on her credit. This very clearly was the nature of the contract made by the parties. But, as opposed to this view, it is said that the plaintiff's books show that the lumber was sold to Czerwinski, and that every bill for the lumber was made out in Czerwinski's name, and that the lumber was sent to him by the plaintiff. But the plaintiff's witnesses explain why the business was done in this...