J. A. Treat Lumber Co. v. Warner , 60 Wis. 183 ( 1884 )

Obtoit, J.

This case, as presented to this court, is very voluminous, and yet is very plain and simple in respect to the legal questions involved. It is, in short and substance, that the defendants Warner and Meyer entered into a contract with the defendant Dean to build and construct for them a building on a part of a city lot which belonged to them in severalty; the building to have a common hall in the center. Dean, the contractor, wished to obtain lumber for said building from the J. A. Treat Lumber Company, and brick from the plaintiff Carter. After the plaintiff, the lumber company, had furnished a small part of the lumber, it refused to furnish any more unless- the defendants would be responsible for payment, and the evidence tends to prove that the defendants did so agree in respect to past as well as future lumber delivered or to be delivered, and to pay the same on the order of the contractor, Dean. The defendants did pay said plaintiff more than the past indebtedness of Dean to it for lumber, and this suit for a mechanic’s lien on the building is for that which was afterwards furnished by the company on the credit of the defendants. In respect to the plaintiff Carter, the testimony tends to show that the defendants promised jointly to pay him for the brick he should furnish for the building, and that he did so furnish the brick on their credit alone.

The contracts and payments and all other facts were submitted to the jury under a charge from the court, which appears to have been perfectly fair and very full and explicit, and there appear to be no erroneous instructions in relation to the law or the facts in it. Most of the errors assigned relate to the misjoinder of the plaintiffs and defendants as being severally interested. It is not perceived in what respect the defendants are severally interested, so far as the plaintiffs are concerned. They jointly contracted with Dean, and jointly agreed to pay the plaintiffs for the' lumber and the brick which entered into the construction of the buildings. They may not have promised to the plaintiffs as being joint in their interests, but they jointly promised the plaintiffs individually, and according to the interest of each. The defendants were clearly joint contractors. They had the building constructed on their several and contiguous parts of a city lot, and the lumber of one of the plaintiffs and the brick of the other went indiscriminately into the building on one side or the other. This makes the building joint in respect to these plaintiffs in every respect, and makes it liable to the lien. The interest in the lot may have been in several, but the building is joint property so far as these contracts and the lien of the mechanics are concerned. It may be that the defendants promised separately and not in the presence of each other, but that can make no difference, when they both promised in respect to their joint enterprise. As to the separate interests of the plaintiffs, they could not probably have sued jointly in law, but the statute unites them in respect to their mechanics’ liens, (sec. 3321, R. S.), and they are required to unite in the action. There is a several personal judgment, but joint judgment of lien. It is a suit in equity, and that all persons interested should join is a familiar principle.

As to the law of the case further, that part of the agreement relating to lumber already delivered on the credit of Dean, the contractor, may have been invalid by the statute of frauds, (a question, however, we do not decide, in a case where the owners of the building, subject to the lien of the plaintiff for the materials entering into the same, make the promise as to past indebtedness). But it appears in this case that such past indebtedness of the defendants to the plaintiff lumber company had long since been paid by them, and so does not enter into this case. This suit is for lumber delivered after the defendants became responsible to pay for the same and before such lumber was delivered solely on their credit. As to the plaintiff darter, all of his material was delivered after such agreement by the defendants to pay for the same.

’ This is really all there is of this voluminous case, and the law involved in it is either statutory or elementary, and no authorities need be cited other than as above. The case seems to have been fairly and fully tried by an able court, very able counsel, and the jury seems to have arrived at a correct verdict. The case being in equity, errors as to the admission of evidence or of instructions to the jury cannot be assigned as in an action at law. But the governing principles of both law and equity in the case are, of course, subject to review in this court. ¥e are unable to see in what respect the judgment is not strictly correct.

By the Court — The judgment of the circuit court is affirmed.