Brown v. Edward P. Allis Co.

Pinney, J.

1. The principal question in this case is whether the defendant the Edward P. Allis Company has a me•chanic’s lien on the premises described in the complaint, and, if so, its date and amount. This point determined, all other questions are free from difficulty. The only interest 'the defendant the Edward P. Allis Company asserts is under the lien it filed April 27, 1896, more than six paonths after that company had performed its written contract with the John-sons and performance of it had been accepted. The amount that thus became due to it was $2,870. This was an entire transaction. The claim for lien is for this item, and the ■amount of an entirely separate and independent transaction, an item of $52.37, for pulleys, etc., furnished November 25, 1895. This made its entire claim, consisting of two items, $2,922.37, upon which $500 had been paid, leaving a balance •due of $2,4-22.37. The evidence is entirely clear on this point. Over four months elapsed between the performance of the written contract, under which the amount due on it accrued, ■and the contract for the $52.37, of November 25, 1895. The matter of this last sum was entirely outside of the written •contract.

The statute (sec. 3318, S. & B. Ann. Stats.) provides that ■“no lien hereby given shall exist, and no action to enforce the same shall be maintained, unless within six months from the date of the last charge for performing such work or labor, or of the furnishing of such materials, a claim for lien ■shall be filed,” etc. The claim for lien was confessedly filed more than six months after the date of the charge under the written contract. No connection in fact or in law is shown between these two contracts. "Where there are several items of account for goods sold at different times, there must be either au express contract, or the circumstances must be such as to raise an implied contract embracing all the items, so .as to make them single or entire; Secor v. Sturgis, 16 N. Y. 548. There was here no such express contract, and no implied contract embracing all the items. Zimmerman v. Erhard, 83 N. Y. 74. Where a party furnishes materials for a building at different times, in order to have a lien for the whole amount furnished, and that a lien might be filed one year after the date of the last charge, it rvas held such materials must have been furnished under one contract. Fowler v. Bailley, 14 Wis. 126. And where work is done in the erection of a building according to a contract, and where there is an acceptance of such work, a lien therefor must be filed within six months after such completion or acceptance. Berry v. Turner, 45 Wis. 105. This view is supported by the case of Fish Creek B. & L. D. Co. v. First Fat. Bank, 80 Wis. 630.

No ground appears for tacking both items of the claim of the Edward P. Allis Company together for the purpose of filing a lien for their entire amount. It clearly appears that the Edward P. Allis Oompamy wholly failed to file its claim in time to secure a lien for the amount that accrued to it under its written contract, and that it had and has no lien on the premises except for the item of $52.37, furnished and dated November 25, 1895.

2. There was no error in the admission of evidence, nor in the findings thereon, to show that the Jolmsons did not intend, in the first instance, to put in a milling plant until after the macaroni mill had been completed, and did not determine to do so until after the making of the mortgage to the plaintiff. There was but one structure or mill, namely, the original macaroni factory, which, with additions of machinery, etc., was converted into a flouring mill. The contention of the Edward P. Allis Company depended wholly upon showing a valid lien. Whether it had such lien was fairly putin evidence, and tried, and it is plain that it has no lien thereon except for the $52.37, as stated. ,

3. The order refusing to grant a new trial on the ground of newly discovered evidence was not appealable, and the appeal of the Edward P. Allis Company therefrom must be dismissed. Laws of 1895, oh. 212.

It follows from these views that the part of the judgment appealed from by the plaintiff which adjudges that the defendant the Edward P. Allis Company has a valid claim for a mechanic’s lien upon the premises and real estate described in the judgment must be reversed, with costs against said' EdwcvrdP. Allis Company, in favor of the plaintiff, except as to the said sum of $52.37; and that that portion of the judgment which adjudges that the claim of the defendant the Edward P. Allis Company for a mechanic’s lien upon the premises and real estate in said judgment described is inferior, subsequent, and subordinate to the claim of the plaintiff, Hiland C. Brown, on account of the mechanic’s liens assigned to him and his mortgage, must be affirmed. The claims of the different parties are entitled to rank and precedence in the application of the proceeds of the sale of the premises as follows: (1) The claim of the plaintiff for the amount due on his mortgage and the several mechanics’ liens assigned to ffim; (2) the claim of the defendant Anna Glennon for the amount due on her mortgage of $500, which is prior to the lien adjudged to the Edxocurd P. AlUs Company; (3) the amount due to the Edward P. Allis Company on its said lien of November 25, 1895, for $52.37; and the residue of the proceeds, if any, is to be paid to the defendant Piarle L. Patterson, assignee of the defendant Johnsons. <

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in'accordance with the opinion of this court.