Harbeck v. Southwell , 18 Wis. 418 ( 1864 )

By the Court,

Cole, J.

The circuit court held, from the allegations in the complaint, that the plaintiff stood, in respect to the owners of the building, in the relation of a sub-contractor in the second degree, and was therefore not entitled to a mechanic’s lien under the statute. If he did stand in that reflation, the conclusion of law was undoubtedly correct.

The complaint alleges that the defendants, Southwell & Johnson, and one Allen, entered into a contract with the defendants Brown, Ogden and Mitchell, by which they were to construct for them a large brick building in the city of Milwaukee. The building was to be constructed according to certain plans and specifications prepared by an architect, for a gross sum, which was to be paid according to the estimates of the architect made from time to time during the progress of' the work, reserving fifteen per cent, of the estimated value of the work performed, from the payments, until the building was completed. The complaint then alleges, “ that the said George Southwell, Jr., and the said David O. Johnson, were at the time of the execution of the said contract, and .continued to be until each and every item of indebtedness hereinafter charged and set forth had fully accrued, co-partners doing business in said city of Milwaukee as carpenters, joiners and master builders, under the firm name and style of Southwell & Johnson, and that as such co-partners they became and were interested in and parties to said building contract, and became indebted to the plaintiff as hereinafter set forth.” Then, after stating the particulars of the indebtedness, the work done and materials furnished, the complaint proceeds .as follows: “All the above labor and material was done and furnished in and about the erection and construction, by tbe plaintiff as sub-contract- or for said Southwell & Johnson as contractors, under and in pursuance of an agreement which had been entered into by the said Allen and the said Southwell & Johnson, as between themselves and those claiming under them, whereby the said Southwell & Johnson were to do, or cause to be done, the carpenter and joiner work, including the painting, glazing and tin work upon the building, and the said Allen was to do, or cause to be done, the mason work, including the iron work thereon, and whereby they were to divide between them the proceeds of such work rateably in proportion to the relative values of the respective portions thereof done or caused to be done by each.”

These are all the allegations bearing upon the point we are considering, and the question is, Do they show that the plaintiff, in respect to the owners of the building, stood in the relation of a sub-contractor of the second degree? It appears to us not. In order to sustain the view that the plaintiff held that relation, we must infer from the above allegations that the contractors entered into some sort of arrangement among themselves by which they became in respect to each other sub-contractors, that is, sub-contractors in a case where they were all most clearly principal contractors. Whether such a blending of characters, such a mixture of legal relations, could exist, and our lien law give effect to them, we will not stop to enquire, as we do not understand that any such relation was attempted to be created in this case. As we understand the complaint, the contractors, for their own convenience doubtless, made an arrangement among themselves, by which they divided the work so that when Southwell and Johnson employed the plaintiff to do certain things relating to their portion of the work, they acted not only for themselves as principal contractors, but likewise for their co-contractor Allen. In other words, by this apportionment of the work, this arrangement among themselves, they authorized each other to employ other persons to work and furnish, materials for tbeir respective branches of the contract. If Allen had employed persons to aid in doing the mason work, he should be considered as acting for all the contractors. If Southwell & Johnson employed persons to assist them in doing the carpenter work, they likewise should be deemed as acting not alone for themselves but also for their co-contractor Allen. This being so, the plaintiff stands in the relation of a sub-contractor to all the principal contractors, and can avail himself of the remedies of the statute. It is true, according to this view of the relation of the parties, Allen should have been joined as a party defendant; but as no objection was taken by demurrer that he was not, the defendants must now be deemed to have waived it. Cary v. Wheeler, 14 Wis., 281; Mead v. Bagnall, 15 id., 156; Faesi v. Goetz, id., 231.

This brings us to a consideration of the sufficiency of the answer demurred to. The main objection taken to the answer is, that it does not deny the averment in the complaint that the owners were indebted to the contractors on account of work done and materials furnished under the contract at the date of the notice given by the plaintiff that he claimed alien, November 8, 1862, and afterwards, in an amount more than sufficient to meet his claim. We think this objection to the answer well taken. The averment in the answer is, in substance, that on or about the 18th day of February, 1863, the contractors announced their inability to proceed and complete the contract, and abandoned the work, when the owners went on and finished the building, charging the contractors with the expense thereof, as they well had a right to do under the contract: that by an account subsequently made up by the architect, it appeared that the contractors were overpaid, &c. Now it is said, in respect to this averment, that it admits, by the strongest implication, that prior to the time the account was stated the owners of the building were indebted to the contractors in an amount exceeding the plaintiff’s claim, and that if so, his lien cannot be defeated, even if the contractors were afterwards permitted to overdraw tbeir account. This position is undoubtedly sound, since our statute distinctly declares that the lien of the sub-contractor shall be valid so far as the owner may be indebted to the contractor at the time of giving his, notice, or may afterwards become indebted to such contractor. Sec. 3, chap. 153. The complaint is very explicit in alleging that the owners, at the time of the service of the notice and after-wards, became indebted to the contractors on account of work done and materials furnished in and about the erection of the building, in a sum greatly exceeding the amount of indebtedness from the contractors to the plaintiff. This material allegation was not denied, except in the manner above stated.

We therefore think the answer was insufficient, and that the demurrer to it should have been sustained.

The order overruling the demurrer is reversed, and the cause remanded for further proceedings.