Wright v. Pohls

• Decision Date: 06 December 1892
• Citation: 53 N.W. 848,83 Wis. 560
• Parties: WRIGHT v. POHLS ET AL.
• Court: Wisconsin Supreme Court

83 Wis. 560

53 N.W. 848

WRIGHT

v.POHLS ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1892.

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

Action to foreclose a mechanic's lien by Edward Wright against Henry Pohls and Susanna Pohls, his wife, impleaded with Opperman & Baalke. From a judgment for plaintiff, defendants Henry Pohls and Susanna Pohls appeal. Reversed.

The other facts fully appear in the following statement by LYON, C. J.:

About June 4, 1888, defendants Opperman & Baalke contracted to build a house for defendant Henry Pohls, for $1,250. They proceeded with the execution of their contract, but before it was completed, and before August 6, 1888, abandoned it. Before such abandonment, defendant Henry Pohls paid Opperman & Baalke $700 on the contract, and it necessarily cost him more than $550 to complete the house according to the contract. Before August 6, 1888, plaintiff sold and delivered to Opperman & Baalke lumber and material used in the construction of the house, of the value of nearly $550. No payment was made on account thereof. On August 6, 1888, plaintiff served on defendant Henry Pohls the notice required by section 3315, Rev. St., and the acts amendatory thereof, to the effect that he claimed a lien on the house and premises for the amount of his demand against the principal contractors. This action was brought to enforce such lien. On the above facts the circuit court gave judgment for plaintiff, enforcing the lien claimed. Defendants Henry Pohls and wife appeal from the judgment.Fiebing & Killilea, for appellants.

J. E. Wildisle, for respondent.

LYON, C. J., ( after stating the facts.)

This case is ruled by the statutes in force in 1888, giving liens to subcontractors and other employes on lands, buildings, or other structures, in certain cases. These statutes are Rev. St. § 3315, as amended by chapter 312, Laws 1885, and chapter 535, Laws 1887. It is maintained that the amendment of 1887 so changes the law that the subcontractor or his employe is entitled to a lien upon the building or structure, and the land upon which it is erected, for materials furnished or labor performed by him for the principal contractor in the erection of such building or structure, to the full extent of the whole unpaid contract price agreed to be paid the principal contractor, whether he has fulfilled his contract or not. Thus, in this case the contract price for the whole job was $1,250, but after the owner of the property had paid the principal contractors $700 thereon, and when it required an expenditure of more than $550 to complete the job according to the contract, the principal contractors abandoned it, and the owner was compelled to finish the erection of the building at his own expense. Yet it is claimed that under chapter 535, Laws 1887, the owner of the building and premises is liable to the subcontractor, the plaintiff, to the amount of his account against the principal contractor for the lumber and materials used in the building, up to $550. Whether this is or is not a correct construction of the statute is the only question to be determined on this appeal.

Section 3315, Rev. St., as amended by chapter 312, Laws 1885, after giving in general terms a lien in the cases mentioned in section 3314, Rev. St., to any subcontractor or employe of any contractor or subcontractor, and prescribing the proceedings to enforce such lien, contained the following restrictions upon the right to such lien: First, “the claim of such subcontractor or employe shall not constitute such lien, except so far as such owners shall, at the time of giving such notice, be, or shall thereafter become, indebted to such principal contractor for work done or materials furnished under the principal contract;” second, “in no case shall the owner be compelled to pay a greater sum for or on account of such house, building, or other improvement than the price or sum stipulated in the original contract or agreement.” A proviso contained in the statute is immaterial here. Chapter 535, Laws 1887, extends the right of lien theretofore conferred by law upon some classes of persons to other classes. It retains all the essential provisions of section 3315, Rev. St., as amended by the act of 1885, except the first restriction above quoted. The argument of the learned counsel for plaintiff in support of the ruling of the court enforcing the lien claimed is founded entirely upon the omission from the statute, or rather the repeal, of such first restriction. In Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 49 N. W. Rep. 1071, this court...