North v. La Flesh , 73 Wis. 520 ( 1889 )

Lrorr, J.

That portion of the judgment of the circuit court which denies the plaintiff a lien upon the land of Mrs. La Flesh, described in the complaint, rests mainly upon the sixth finding of fact, which is to the effect that all the merchandise sold by the plaintiff to the defendant Thomas -was charged to the latter on the books of the plaintiff in the order of their purchase in one continuous account, without reference to the use thereof in any particular building, and without reference to any rights to or claim for a lien. In other words, that, considered in connection with other findings of fact, the transaction was a sale by one merchant to another in the usual course of business, without reference to use in any building or right to a lien.

If such finding of fact be sustained, the case is probably within the rule of Esslinger v. Huebner, 22 Wis. 632. In that case Mr. Justice PaiNe, commenting upon a certain instruction given to the jury, said: “ The plain meaning of this is that, although the lime was sold generally to E. W. Huebner on account, and without am*- reference to this or any other building, yet if he allowed any portion of it to be used in his wife’s building, that would give the lien. This is not the law. How it might be in such a case if the purchaser used the material in his own building it is not necessary to inquire. But it seems clear that one who sells materials to another generally, without reference to any building, cannot follow them with a lien into the buildings of other parties to whom the purchaser may transfer them. And it would make no difference that they were used upon the separate property of the purchaser’s wife.” Whether the rule of that case is affected by subsequent legislation upon the subject of liens, and, if so, to what extent, need not be here determined, for the reason that we are satisfied that the evidence in the case does not support the sixth finding of fact. The evidence is almost conclusive that the plaintiff sold and delivered the materials in question to the defendant Thomas to be used in the erection of the buildings on his wife’s land, and that they were in fact so used. Indeed, the only testimony to the contrary is the inference which might, perhaps, under some circumstances, bo drawn from the fact that the plaintiff charged such materials in his books in the order of sales, with non-lienable goods. But notwithstanding his mode of book-keeping, the testimony of the plaintiff, the contractor who erected the buildings, and the agent or servant of the defendant Thomas J. La Flesh to whom a considerable portion of the materials in question was delivered, satisfies our minds that the finding in question is not sustained by the proofs.

The learned circuit judge filed a Avritten opinion, in which he cited the case of Esslinger v. Huebner, and also that of McMaster v. Merrick, 41 Mich. 505, and seems to have rested the judgment mainly upon these cases. He quotes from the latter case the following: “It is also settled that one of the plainest cases of waiver is where privileged and unprivileged claims are mingled together in the same dealings, so that the lien is not kept ascertainable without restating and charging the accounts.” We are inclined to think that this case led the circuit court into the error of giving undue influence to the fact that the plaintiff did not keep a separate account of the materials sold by him to Thomas to be used in the construction of the buildings. For this reason we will briefly review that case: There, as here, lienable and non-lienable items were charged in one general account. The transactions between the parties in respect to the lienable items related to work upon logs in sawing the same and drying and shipping the lumber, but, unlike this case, a large percentage of the account of the defendant (who did such work and claimed a lien therefor upon the lumber) had been paid by the plaintiff’s assignor, and such payments had been applied by the mutual consent of both parties in payment of a general account. The case is somewhat involved in its facts, and a full statement of it will not be attempted. It is sufficient to say that the terms of the "contract between the parties to the transactions there in question, and the course of dealing between them, rendered it impossible to ascertain from their accounts alone the amount for which the defendants should have a lien on the lumber. To ascertain such amount it was necessary to investigate those transactions and apportion payments. Of course this could not be done “without restating and charging the accounts.” Because it could not, and because the right of the defendant to a lien was a very doubtful one, the Michigan court held that he had waived it. We make no controversy with that court in respect to the doctrine of that case. It is quite probable that we should rule the same way in a similar one. In this case, however, the value of the lienable materials is easily ascertainable from the account itself, and no restatement thereof is necessary for that purpose. The plaintiff is only required to show what materials charged therein were sold and delivered by him to be used in the construction of. the buildings in question, and that must be shown in any case. That proof having been made, the amount of lienable charges in the account becomes ,a mere matter of computation,; — not a cause for anj? restatement or recharging of the account. Hence the rule of the Michigan case has no application to tfye facts of this case.

On the same general subject counsel for defendants relies .upon certain Iowa cases, and gives what purports to be a quotation from Cotes v. Shorey, 8 Iowa, 416, to support his position. We fail to find in the report of that case the language quoted. In that case the judgment refusing to • enforce a lien was reversed because of the refusal of the trial court to instruct the jury as follows: “ If the jury believe from the evidence that the plaintiff sold the materials charged in the account of the plaintiffs to the defendant for the purpose of erecting a house with the same, though the particular house was not then understood by the parties, and if the jury also believe that said materials, or any part thereof, were used by the defendant in erecting the house described in the plaintiffs’ petition, the jury will find for the plaintiffs and establish their lien as prayed,” etc. There is nothing in the case to interfere with the right to a lien here claimed. Moreover, the Iowa statute under which Cotes v. Shorey was decided provides that “every person who ly virtue of a contract with the owner of a piece of land performs work or furnishes material especially for any building, and which material is used in the erection or reparation thereof,” has a lien, etc. The language of our statute is: “Every person who, as principal contractor, performs any work or labor, or furnishes any materials, in or about the erection, construction, repairs, protection, or removal of any dwelling-house or other building, . . . shall have a lien therefor,” etc. There is a material difference in the two statutes, in that the-Iowa statute makes a contract with the owner of the land that the materials are to be furnished especially for the building essential to the lien, while ours merely requires that they shall be furnished therefor, without reference to any contract or agreement except that implied from the sale and delivery of the materials to be so used. Hence, did the Iowa cases hold what it is claimed they do, they would afford us little aid in construing our statute.

It must be held that the sixth finding of fact is unsupported by the testimony; that the materials in question were sold by the plaintiff to be used in the construction of the buildings upon the land described in the complaint; and that, were the defendant Thomas the owner of such land, the plaintiff would be entitled to a lien thereon for the value of such materials.

Is he entitled to such lien as against Mrs. Loj Flesh, who was .and is the owner of the land? This question is answered affirmatively by the judgment of this court in the case of Heath v. Solles, ante, p. 217. It is not denied that Mrs. La Flesh had knowledge that her husband was erecting the buildings upon her land, and consented thereto. Under the case last cited, nothing more is required to charge her land with the lien. That is a stronger case against the lien than is this, for the reason that the husband of Mrs. Solles expressly promised his wife to erect the' building at his own expense, which he failed to do. Yet, because she knew that the improvement was being made, and consented thereto, her property was charged with the lien. The present case is ruled by that judgment. Hence it must be held that the plaintiff is entitled to a lien upon the forty acres of land upon which the buildings were erected (the same not being within the limits of an incorporated city or village), although the materials were purchased by the defendant Thomas upon credit, without the authority of his wife, who is the owner of the land. The statute upon which that and the present case rests is sec. 3314, E. S., as amended by ch. 349, Laws of 1885. The full discussion of the question under consideration in the .opinion in that case, prepared by Mr. Justice TayloR, renders it unnecessary to say anything more upon the subject.

The sum for which the lien should be allowed will now be considered. The plaintiff alleged in his petition for a lien that the value of the materials used in the erection of the buildings was $483.56. In his complaint he only claims $466.80. This discrepancy was caused by omitting certain items in the account, which probably were not used in the buildings. From the smaller sum should be deducted $18, paid by Mrs. La Flesh for articles charged in the account, but returned, and, after the filing of the petition, again taken and used in the building. The court found that payments had been made on the general account to the amount of $310.21. No appropriation of these payments has been añade by the parties, and the plaintiff seeks to apply them to the non-lienable items in the general account, except the $18 which we apply on the lienable items. It appeared on the trial that over $280 of the plaintiff’s account con-sisted of advances made by the plaintiff to pay freights chargeable to the defendant Thomas. The money was so advanced without charge, for the accommodation of said Thomas. In view of this fact, we think it entirely equitable to apply all the payments except the $18 above mentioned upon the account for cash advances and non-lienable goods. Hence the lien should-be for $148.80, and interest thereon from the commencement of the action, which was August 3, 1887.

The court found the amount unpaid on the whole account on May 24, 1887, to be $1,412.96. In the fifth finding of fact, he found and allowed a further payment of $299.93, made November 17, 1887. This was several months after the action was commenced, and after issue joined therein. "We are unable to find in the record any testimony relating to this alleged payment or any admission thereof. It was therefore improperly allowed. If such payment was in fact made, we think the circuit court may direct it to be allowed upon the judgment, because made after issue, and hence not covered by the pleadings in the action. We are also of the opinion that the interest should be computed from the commencement of the action.

Some minor objections to the regularity or sufficiency of the pleadings and proceedings in the circuit court were made by counsel for the defendants on the argument of this appeal. Some of these will now be briefly noticed. (1) It was objected that there was a variance between the petition for a lien and the complaint in that the petition charged the sale of the materials to both defendants La Flesh, while the complaint charged the sale to the defendant Thomas alone. This variance is quite immaterial. It can harm no one. The complaint states the fact as it was proved on the trial. And the petition is amendable at any time to make it correspond with the complaint and proofs. (2) The same remarks are applicable to another and similar objection, that the petition charges that the materials were used in the erection of a certain building on the land in question, -while the complaint alleges that the same were used in the erection of a house and barn thereon. (3) It is said that the buildings are not sufficiently described. The description thereof is as definite as the statute which gives a lien for materials furnished in the erection of a dwelling-house or other building upon the land. R. S. sec. 8314. Both the petition for the lien and the complaint contain an accurate description of the land upon which the buildings were erected. That is sufficient. (4) Some criticism was made in the argument upon the practice by which judgment in the same action for one amount was rendered against the debtor, and a further judgment therein, making a portion of that amount a lien upon the land of another defendant. We perceive no valid objection to this practice. Certainly Mrs. La Flesh is not injured by it; and, inasmuch as the statute gives the defendant Thomas the right to a common-law trial by jury, we are equally unable to perceive that he has any valid ground for complaint. (5) Sec. 3324, R. S., gives the plaintiff the right to have his costs paid out of the proceeds of the sale of the property against which the lien is adjudged. Of course the defendant Thomas is liable for all the costs in the action.

It follows from what has been said that the judgment of the circuit court must be reversed, and the cause will be remanded with directions to that court to render judgment for the plaintiff in accordance with this opinion.

By the Court.— Ordered accordingly.