164 Wis. 215 | Wis. | 1916
It is contended by defendants that the notice of claim of lien by the plaintiff was insufficient under the calls of the statute to give to it a right of lien, and that in any event the writing signed by the plaintiff on July 24th, set out at length in the statement of facts, should be considered a waiver of any rights the plaintiff may have had against the real estate of the defendant Mary Elfers.
Sec. 3315, Stats. 1911, which was in effect at the time the materials were furnished by the plaintiff, provided that such materialman or subcontractor should, within sixty days after doing the work or labor or furnishing the materials, give notice in writing setting forth that he has been employed by the principal contractor to perform or furnish and has performed or furnished work, labor, or material, with a statement of the labor performed or the materials furnished, the amount due therefor from such principal contractor, and that he claims a lien, etc.
• The provision that now appears in the same section to the effect that in the event that any owner shall complain of the insufficiency of such notice the burden of proof shall be upon him to show that he has been misled or deceived by such insufficiency thereof, first appeared by ch. 213, Laws 1913. The construction, therefore, given to this notice must be upon the law as it stood in the Statutes of 1911. Under that statute the right of the lien was lost unless the notice contained the statutory requirements. Security Nat. Bank v. St. Croix P. Co. 117 Wis. 211, 220, 94 N. W. 74.
There being a failure of proper notice, no judgment for lien could be entered. This disposition of the case makes it unnecessary to consider whether there was a waiver of lien by the writing of July 24, 1911.
By the Court. — Judgment reversed, with directions to dismiss the complaint.
