Brown & Haywood Co. v. Trane , 98 Wis. 1 ( 1897 )

PiNNey, J.

The statute (sec. 3315, E. S.) provides: “ Every person who, as subcontractor of a principal contractor, performs any work or labor for or furnishes any materials to the principal contractor, , . . in any of the cases mep-.tioned in the preceding section, shall be entitled to the lien and remedy given by this chapter, if, within sixty days after performing such work or labor or furnishing such materials, he shall give notice in writing to the owner, or his agent, of the property to be affected by such lien, setting forth,” etc.

The pjate glass which the plaintiff furnished under its contract with Gross, the contractor, was delivered to him. and used in the building, October 11, 1895. Had the glass been suitable, and in compliance with the plaintiff’s contract, it does not admit of any doubt but that the plaintiff’s time within which to give notice of its claim of lien therefor would have expired sixty days thereafter, or as early as December 11th. It did not give the necessary notice until January 11th next thereafter. In the meantime the defendant had settled with and paid Gross, the contractor, and Gross had made an assignment for the benefit of his creditors. The want of timely notice to the defendant Trane is a fatal objection to the plaintiff’s case. The statute giving the remedy sought by the plaintiff as subcontractor is, at best, a harsh one, and parties invoking it are bound to bring themselves strictly within its provisions. It is clear that the glass was defective and not in compliance with the contract. This is really conceded by the plaintiff’s shipment to the contractor, Gross, at La Crosse, of two new plates to supply the place of those which were defective. These plates were never delivered to or accepted by Trane, the owner, and they were never wrought or put into the building. The claim that the delivery of the two substitute plates for the defective ones shipped to Gross, the contractor, at La Crosse, and which arrived there December 18, 1895, makes'that the Last date upon which the plaintiff furnished said materials, is wholly untenable. Work done or materials furnished within six months prior to the filing of a mechanic’s lien to compensate for defective performance of a building contract completed more than six months prior will not extend the time and preserve the right to file such lien. Harrison Homosogyathic Asso. 134 Pa. St. 558. In Kennebee Framing Oo. v. Pielcering, 142 Mass. 80, where a person furnished lumber at a certain price per 1,000 feet, at different times, under an entire contract in the erection of a building, it was held that he lost his lien if he neglected to file his statement of the amount due him within thirty days after the last item was furnished which was actually used in the erection of the building. The last glass actually used in the building in the present case was furnished more than sixty days before the plaintiff gave notice of its claim of lien. Gale v. Blaikie, 129 Mass. 206.

It does not appear that there. is any ground for claiming that the objections made to the two plates, as defective, were made by collusion between Trane, the owner, and Gross, the contractor, or that the settlement with and payment to Gross wrnre made collusively or with intent to defeat the plaintiff’s claim for a lien. The objection of want of timely notice of the plaintiff’s claim is decisive of his right to recover.

The judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the plaintiff’s complaint.

By the Court.— Ordered accordingly.