Kerrick v. Ruggles , 78 Wis. 274 ( 1890 )

Oassoday, J.

Tbe machinery in question was purchased of tbe plaintiff by Buggies, March 10, 1887, to be used in tbe repair and construction of a mill upon tbe premises described. Buggies was then in tbe possession of sucb premises under bis contract of purchase from tbe Neil-Pratt Imriber Oonypany, and bis interest therein was sufficient to subject said premises to a lien in favor of tbe plaintiff by reason of tbe purchase of sucb machinery, if he was otherwise entitled. It- is true that Buggies agreed to pay for tbe machinery by transferring to tbe plaintiff certain shares in a mining option, but wholly failed to make any sucb transfer or any payment thereon whatever. But tbe plaintiff was not precluded from enforcing bis lien by the mere fact that Buggies bad so agreed. It is undisputed that tbe. plaintiff furnished tbe materials — tbe machinery -in question,- — and that tbe same, or at least a portion thereof, were so used in the repair and construction of the mill as to become a part of the freehold upon which the same was constructed. These things being so, the statute gave to the plaintiff a lien upon the interest of Ruggles in and to the mill and the land upon which the same was situated, not exceeding forty acres, which lien was by statute prior to any other lien which originated subsequently to the commencement of such repairs or construction. Sec. 3314, R. S.; Kendall Mfg. Co. v. Rundle, ante, p. 150. The plaintiff is certainly not to be barred of this statutory right by the mere fact that he would not have been entitled to it had Ruggles paid for the machinery as he had agreed. The court properly rejected the testimony of Rxiggles as to whether the plaintiff was a partner in the real estate option.

By the compromise of July 1, 1881, the Neil-Pratt lumber Company took back the interest of Ruggles in the premises subject to the plaintiff’s lien. Kendall Mfg. Co. v. Rundle, supra. It is admitted that at the time of that compromise the company knew of the improvements that had been made by Ruggles, and of course accepted them subject to such lien. The correction of the description of the premises in the petition for the lien, by the action and judgment, seems to have been competent. Sherry v. Schraage, 48 Wis. 93; Huse v. Washburn, 59 Wis. 414; Stacy v. Bryant, 73 Wis. 19.

The account for a portion of the machinery is dated March 9,1881, but it sufficiently appears from the evidence that the same wras not shipped until the next day, and both purchases were professedly made for the same mill, and hence the trial court was justified in finding that the petition was filed within the time prescribed by sec. 3318, E. S. The findings of the court are all supported by the evidence. There is no error in the record.

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