E. M. Fish Co. v. Young

127 Wis. 149 | Wis. | 1906

WiNsnow, J.

Tbis is an action to foreclose a mechanic’s lien for repairing and rebuilding a dwelling bouse. The court adjudged a lien for $39.50, with interest and costs, and both parties appeal.

Upon the plaintiff’s appeal the contention is that the judgment should have been entered for $175.69, and this question will first be considered. It appears that prior to January 14, 1902, the defendant Young's house had been partially destroyed by fire and that Young made an oral agreement with the plaintiff to make the necessary repairs as cheap as any other contractor, the defendant to furnish such material as he could. Under this arrangement the plaintiff went to work about the 14th of January, 1902, and ceased to work March 22d following. Young made payments on the account from time to time, among which payments was a carload of lumber, which was credited to him by plaintiff April 19, 1902, at $157.19, but which afterwards turned out to be not the property of Young. On May 16th following the parties met and Young turned over to plaintiff a due bill for $22.69, payable in lumber, and sufficient cash to amount to $75 in all, and the plaintiff gave him a receipt “to balance account to date.” Shortly after this transaction Young ordered of the plaintiff screens for the windows and doors of the house, and . the plaintiff manufactured them and placed them upon the windows and doors of the house May 31st, attaching them with buttons, and also repaired some old screens for the house; the total value of labor and materials in connection with the screens being $39.50, and the work being finished June 7th. This action was commenced May 30, 1903. The plaintiff claims that the furnishing of the screens was a part of the original contract, and, as it was afterwards obliged to pay the true owner of the carload of lumber therefor, it sought to enforce a lien in this action for the-amount which it was obliged to pay the true owner for the carload of lumber and for the bill for screens as for a single continuous bill. The court found, however, that tbe original contract of repairing’ was completed March 22, 1902, and that the contract for the screens was a separate and independent contract. Such being the finding, and this action not having been commenced until May 30th in the following year, the court held that there could be no.lien for the work on the original contract because the action was not commenced within one year' from the last charge for the performance of work (Stats. 1898, sec. 3318), and only adjudged a lien for the furnishing of the screens. This was purely a question'of fact upon the evidence. We cannot say that the conclusion reached by the court is against the weight of the evidence, and hence the plaintiff’s contention must fail.

Upon the defendant’s appeal three contentions are made, which will be briefly considered.

1. It is claimed that the window and door screens were not so attached to the house as to become fixtures, and hence that no lien upon the house can be adjudged for them. This contention cannot prevail. The screens were manufactured specially for and fitted to the house, were adapted to its permanent enjoyment and placed there by the owner. It is true that (according to the findings) they were not physically attached or screwed on, but were simply fastened by buttons (although it is not quite clear how doors could be so attached and serve any useful purpose). Physical annexation, however, although always an important consideration, is not the sole test nor by any means the controlling test in determining the question of fixture or no fixture. The question of the intention of the party making the annexation is the principal consideration. Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36. When the owner of a house orders screens to be manufactured and fitted to his house there can be no serious doubt as to his intention. Though detachable for convenience during the winter months, the intention is unquestionably to permanently increase the comfort of the house and its desirability for residence purposes. Tbe great majority of bouses now built are provided witb detachable fly screens manufactured for and specially fitted to tbe bouse by tbe owner and intended to be used tbereon during tbe summer season, and it would be a strange doctrine wbicb should bold that when such a bouse is sold tbe screens' do not pass witb tbe bouse as a part of tbe realty, but may be taken away by tbe vendor unless specially transferred to tbe vendee. Our statute gives a lien for materials and labor furnished “for or in or about* the erection, construction, repair . . .• of any dwelling bouse, building or appurtenance thereto” (Stats. 1898, sec. 3314, subd. 1), and we think that screens manufactured for and fitted to tbe bouse as in tbe case at bar are part of tbe bouse and clearly included within tbe term _ “appurtenance,” although they are detachable without injury to tbe bouse.

2. It appeared that another lien action was commenced shortly before tbe present action, and the claim is made that this action should have been dismissed because there was another action pending to which tbe plaintiff should, by application to tbe court, have become a party, for tbe reason that it is tbe legislative intent that but one action should be maintained for tbe foreclosure of mechanics’ liens upon tbe same property in wbicb all the lien claimants should litigate and enforce their claims. Stats. 1898, sec. 3321. Were tbe question really here for decision it would deserve serious consideration, but tbe difficulty is that this defense was not pleaded. Tbe defense of another action pending is a defense in abatement, wbicb must be pleaded witb particularity, and if not pleaded it is waived. Winner v. Kuehn, 97 Wis. 394, 72 N. W. 227.

3. Tbe trial court filed a short opinion in deciding tbe case, and directed tbe plaintiff’s attorneys to draw findings. Thereupon tbe attorneys drew findings wbicb were signed by tbe judge, but wbicb did not accord witb tbe decision in two vital points, and did not sustain tbe judgment for that reason. Thereafter, upon motion of tbe defendants’ attorney, tbe findings were corrected so as to accord with tbe decision of tbe ■court. Tbe plaintiff was allowed to recover costs for drawing these findings, and error is now claimed upon this ruling. It has been decided that a party may tax for tbe drawing of findings when- directed so to do by tbe trial judge. Hill v. Durand, 58 Wis. 160, 15 N. W. 390. While tbe practice is allowable it is not commendable, and tbe present case amply illustrates tbe danger. Tbe statute requires tbe decision to be in writing in an action tried by tbe court, and directs that “the judge shall state in bis decision separately (1) tbe facts found by him and (2) bis conclusions of law thereon.” Thus -the responsibility for tbe correctness of tbe findings is thrown upon tbe judge, and be cannot sbirlc it. Harringan v. Gilchrist, 121 Wis. 127, 396, 99 N. W. 909. If be does not draw them himself (and no good reason is perceived why be should not do so, except in case of a press of judicial business which deprives him of tbe necessary time), be should clearly .inform counsel of tbe conclusions of fact and law which be lias reached and should carefully examine tbe findings to see if they agree with such conclusions before signing them. On tbe other band, tbe attorney who is directed to draw tbe findings should see to it that they are drawn precisely as directed. Any other course will naturally result in partisan and inaccurate findings not representing tbe real decision and perhaps not sustaining the judgment. That was tbe .case here, and tbe •question is whether costs should be allowed for tbe drawing of such findings. This question must be answered in tbe negative. Findings which upon vital points fail to conform to tbe •direction and decision of tbe trial court are not “necessary” papers or proceedings in a cause; on tbe contrary, they are, in tbe highest degree, unnecessary and improper. Tbe charge allowed for drawing tbe findings and copies in this case was •$14.70, and it should have been entirely disallowed.

Upon tbe defendants’ appeal tbe judgment must be modified so as to allow only $103.56 costs, and, as so modified, tbe-judgment must be affirmed on botb appeals: no costs to be recovered by either party, except that the fees of the clerk of' this court shall be taxed against the plaintiff.

By the Court. — It is so ordered.