Berry v. Turner

| Wis. | Aug 15, 1878

Taylor, J.

"We are of the opinion that the learned circuit judge who tried this action in the court below, was clearly right in finding that the plaintiffs had no lien for the amount of their claim, and that the judgment must be affirmed.

Sec. 4, ch. 153, E. S. 1858, as amended (under which the plaintiff's claim their lien), reads as follows: . .

“JSTo such debt for work and materials .shall remain a lien upon such lands, houses or other building or machinery,longer than one year from the time of the furnishing of materials or the performance of the labor, unless a petition or claim for the same be filed, and an action for the recovery thereof be ■instituted, within the said year. Such petition or claim shall he filed in the office of the clerk of the circuit court of the proper county, within six months from the date of the last charge for work and labor performed, or materials furnished.”

The evidence in the case at bar shows that the machinery and fixtures were all furnished, and the work and labor all performed in placing the same in position ready for use, as early as the 6th day of October, 1873. The account for the value of the same was rendered by the plaintiffs to the defendants Turner and Morgan, ETovember 13, 1873; and, so far as the evidence shows, the defendants accepted the machine and fixtures, and the work of putting them in position, as of that date. If, by the terms of the contract, the payment had been required upon the completion of the work, there can be no doubt that the plaintiffs could have maintained an action for the purchase price immediately after the completion of. the work in October, 1873.

The fact that there was a warranty upon the sale, and that such warranty was afterwards found to have been broken, could not affect the plaintiffs’ right to recover for the contract price as fixed by the terms of the contract, subject to the defendants’ right to a counterclaim for any damages sustained by the breach of the warranty.

Thé evidence shows that the defendants Turner and Morgan did. not rescind the contract because the warranty was broken; and it cannot therefore be consistently claimed that there was a new sale and delivery of the machinery and fixtures in September, 1874. The defendants complained that there was a breach of warranty in relation to the effect which the machine, as placed by the plaintiff, would have upon insurance, and insisted that the plaintiffs, as a satisfaction to them for-their damages in that respect, should be at the expense of removing the machine to a place which would obviate the objection of the insurance companies, and in addition pay the defendants tíre cost of erecting a building in which to place the machine; this the plaintiffs accepted as a settlement of the defendants’ claim for damages, and thereupon the defendants assented to tbe payment of the whole amount of the plaintiffs’ claim as fixed in November, 1873. "We are unable to see how the work in removing the machine in 1874 can be construed to be a part of the work agreed to be done in 1873 By the contract of 1873, the plaintiffs were to place the machine just where it was then placed; it was so placed with the assent of the defendants, and the whole work was then completed as agreed upon by the parties. Suppose the defendants Ttvrner and Morgan had paid for the machine and fixtures in 1873, when the work was finished, and afterwards had claimed damages of the plaintiffs on account of a breach of warranty in respect to the work or machine, and, in order to settle such claim for damages, plaintiffs had done the same work and made the same payment they did in this case in 1874: it is patent they would neither have, a lien for such work, nor any claim against the defendants therefor.

We do not see that what was done by the plaintiffs in this case in 1874, was at all different in its nature. It was not in completion of the contract made and performed in 1873, but was simply a settlement of a claim for damages which the defendants preferred against them, for a breach of warranty of that contract, and was in no sense a completion of it. By the contract of 1873, it was agreed that the machinery should be placed within the hotel building, and it was so placed; and there was no agreement that, if it did not work well there, it should be removed by the plaintiffs outside the building, but the plaintiffs agreed (so the defendants allege) that the placing it in the building would not injure them in the matter of their insurance. In 1874 the defendants claim that so placing it did injure them in that respect, and demand that the plaintiffs shall make them good for such injury; they assent to the justice of the claim, and, instead of making satisfaction in money in whole, they do so by removing the machinery out of the building to a place where it will not prejudice the rights of the defendants. To make the matter more plain, suppose, when the defendants made their claim for damages in 1874, the plaintiffs, instead of removing the machine themselves, bad said to the defendants: “You remove the machine to a suitable place outside the hotel building, where it will not interfere with your insurance, and we will give you credit on our account against you for the costs of such removal: ” could it be said that such work done by the defendants themselves would have been a continuance of the plaintiffs’ work under the contract of 1873?

The mistake made by the'appellants lies in the false theory that the work done in 1874 was done in completion of the contract made and completed in 1873, and not in satisfaction and settlement of the claim for damages preferred by the defendants on account of the alleged breach of warranty.

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

RyaN, C. J., took no part.