Neil & Co. v. Wisconsin Telephone Co. , 170 Wis. 298 ( 1919 )

Siebecker, J.

The record discloses that none of the laborers and materialmen who áre defendants and whose alleged rights to payment of their claims against the contractor, Sedlachek, out of the moneys held by the Surety Company from the Telephone Company have been disallowed by the judgment awarded, have appealed. Their right to payment out of the fund in the hands of the Surety Company is therefore finally denied by the judgment of the circuit court.

The issues, therefore, on this appeal are: (1) Did the trial court properly adjudge that plaintiff has established its subcontractor’s lien for labor and material furnished in thfe erection of the telephone building and that it has a preferred claim for payment out of the fund held by the Surety Company; and (2) Has the Surety Company any claim to such fund superior to the claims of the Bank?

The trial court found that the sum of $1,765.65 remains due to plaintiff on its contract for the furnishing and installing of the plumbing and the heating plant in the erection of the Telephone Company building, and that plaintiff failed to give the ten-day notice, but gave the sixty-day notice to the Telephone Company as required by sec. 3315, Stats., to perfect its laborers’ and materialmen’s lien provided for in this section. The Telephone and Surety Companies do not assail these findings of the court, but the Bank insists that the court erred in so finding, for the reason that the evidence of notice of a claim of lien fails to establish the notice required by sec. 3315, Stats. 1913. This statute provides that such lien claimant, “within sixty days after performing such work or labor or furnishing such materials, . . . shall give notice in writing to the owner, or his agent, of the property to be affected by such lien, if to be found in the county, and if neither can be found therein, by filing such notice in the office of the clerk of the circuit court of such county,” setting forth specifically the things enumerated in the statute. We consider that the evidence in the case sustains the trial court in finding that Paul D. Durant represented the Telephone Company and the Surety Company from aqd after the 7th day of September, 1916, as attorney and agent in the negotiation and adjustment of the transactions arising out of the contract for the erection and completion of the Telephone Company’s building. We are also persuaded that the court correctly found that the last labor and material was furnished within the month of August and within sixty days of the 19th of September, when plaintiff by its attorney sent a letter to Paul D. Durant at the city of Milwaukee setting forth' the plaintiff’s claim for a lien for the work and material furnished under its contract for the erection of the building and the amount unpaid thereon. Though this letter lacks the usual formality of such a notice and contains some immaterial matters, yet in substance it is a notice containing a statement of the amount due plaintiff as subcontractor for the work, labor, and material furnished under its contract for the erection of the telephone building and makes a claim for a lien on the premises.

It is strenuously asserted that the service on Durant as agent for the Telephone Company is not in compliance with the provisions of sec. 3315, Stats. 1913, requiring that such notice must be given “in writing to the owner, or his agent, . . . if to be found in the county, and if neither can be found therein, by filing such notice in the office of the clerk of the circuit court of such county.” It is urged that it is necessary under these provisions that service of such notice' on the owner or his agent müst be made in the county where the property is located, and, if such service cannot be made in such county, then such notice must be filed in the office of the clerk of the circuit court of the county. This construction precludes service on the owner or his agent outside of the county where the property is located. This, we think, is too strict and narrow an interpretation of the statute. The language used does not necessarily import that service of such notice on the owner or his agent can only be made in the county where the property is located, nor does it forbid service of such notice on either the owner or his agent anywhere in the state. It however gives the lien claimant the right to perfect his lien, if the owner or agent cannot be served in the county, by filing such notice in the office of the clerk of the circuit court. It follows from this that plaintiff had the right under this statute to serve a notice of claim of lien on Durant as the Telephone Company’s agent, as found by the trial court.

The plaintiff having perfected its subcontractor’s lien, there can be no controversy as to plaintiff’s prior and superior right to payment over that of the Bank for the work, labor, and material furnished, the bulk whereof had been furnished prior to October 22, 1915, the date of the alleged assignment to the Bank.

It is contended by the Surety Company that the court erred in-awarding judgment in the Bank’s favor for the re- , covery of the balance of the $4,907.05 after deducting therefrom the amount of the plaintiff’s judgment. There is no controversy but that defendant Sedlachek owes the Bank the sums as found by the court and that this debt is in excess of the balance of the fund the Surety Company received from the Telephone Company after deducting plaintiff’s judgment. The Bank insists that it is entitled to such bal-' anee as the assignor of the fund and creditor of Sedlachek for moneys it advanced to him in conducting his building operations, including the construction of the telephone building. The Surety Company asserts a superior and prior equity over the Bank to this balance of the fund it so received from the Telephone Company. In determining this question it must be borne in mind that the record shows that there is no other subsisting lien on the telephone building in favor of the contractor or any other subcontractor or laborers and that all of the intervening defendants in this action except the Bank have not appealed from the judgment entered-herein and hence they are not in a position to assert a claim to this fund, held by the Surety Company.

Upon this state of the case it follows that there is no creditor of Sedlachek who has a superior claim to the fund held by the Surety Company to that of the Bank as determined by the judgment appealed from. The Surety Company claims that it holds this money as a trust fund under the provisions of the statutes and the building contract of the Telephone Company.' Such a trust fund is, however, conditioned on the event that the claimants thereto are persons entitled to a lien on the premises on which the building is erected and that the owner is liable for such claims. As heretofore indicated, no such lien claims are shown to exist. Nor does the record show that the Surety Company has any subsisting claim for moneys heretofore paid by it on account of its liability as surety to release any lien on the Telephone Company’s property, or for any claims it has paid that constitute a superior and prior claim on the funds it received on the building contract to that of the Bank as creditor of Sed-lachek. Under these facts it is not shown that it has a superior equitable right to this fund to those of the Bank. The claim that the Surety Company is entitled to be reimbursed for the costs, disbursements, and attorney’s fees it paid and has incurred in litigating the issues in the instant case is not well founded. In this respect it stands in the place of the Telephone Company. Had the Telephone Company undertaken to litigate the issues raised by the pleadings there can be no question that it would have been liable for costs in the action in view of the recovery awarded the plaintiff and the Bank.

We find no reversible error in the record.

By the Court. — The judgment appealed from is affirmed on both appeals, the plaintiff to recover costs against the Surety Company. The appellant the United States National Bank is not to recover any costs in this court nor beTiable for costs to the plaintiff or the Surety Company. The Surety Company to pay the clerk’s fees.