212 Wis. 365 | Wis. | 1933
The following opinion was filed June 6, 1933 :
On and prior to February 13, 1930, Fuller & Johnson Manufacturing Company, a corporation, hereafter called the company, was the owner of the lands described in the statement of facts. At that time a comparatively new building belonging to the company was located at the corner of what is now Dickinson street and East Washington avenue. Adjoining said new building on its northwesterly side was a building known as the blacksmith shop, which in turn adjoined another building, which faced westerly on what is now Dickinson street and northerly on Mifflin street. These buildings, with the exception, of the blacksmith shop, were built upon the northeasterly line of what is now Dickinson street.
Although numerous contentions are made by the city of Madison in support of the judgment as rendered, we think this action may be disposed of by considering two principal questions: (1) Are the plaintiffs entitled to a lien for tearing down a part of the blacksmith shop and hauling away the materials and debris? In other words, did such work and labor constitute a “removal of any building” within the
1. While the language “removal of any building” seems not to have been construed by this court, we entertain no doubt that that language is sufficiently broad and comprehensive to include the tearing down of a building and hauling it away. Lien laws are remedial in character and are to be liberally construed so as to make the remedial purpose of the legislature effectual. Vilas v. McDonough Mfg. Co. 91 Wis. 607, 65 N. W. 488; Wiedenbeck-Dobelin Co. v. Mahoney, 160 Wis. 641, 152 N. W. 479; Herro v. Heating & Plumbing F. Corp. 206 Wis. 256, 239 N. W. 413.
We think that the language “removal of any building,” found in our statute, should not be construed as applying merely to the removal of a building as a unit from one location to another. We do not think that the legislature intended that that language should be given so strict a construction. We think the language sufficiently broad to require that the plaintiffs be given a lien for the work of removing a part of the blacksmith shop even though it was not removed as a unit or part of a unit.
2. Was the claim for lien filed within six months from the date of the performance of the contract work? The city contends • that it was not and the plaintiffs contend that it was. It is argued in support of the city’s contention that the
“The essential feature of such a contract (divisible contract) is that a portion of the price is by the terms of the agreement set off against a portion of the performance and made payable for that portion, so that when part of the performance has been rendered a debt for that part immediately arises. Where by the terms of a contract the performance is to be paid for at a certain rate so that the contract price for a portion of the performance can readily be calculated, it is still true that in the absence of an agreement to that effect, no part of the price is payable until the whole performance has been received. It is essential not only that the price for a part can be calculated, but that expressly-or impliedly there shall be a promise to pay a part.”
Again in sec. 862, following, it is further said:
“The governing principle is the manifest intention of the parties in view of the nature of the contract, and the usage of business — that is, their intention to have performance of the contract in parts, and have the performance of a part on one side the price or exchange of a corresponding part on the other. If payment of a lump sum is to be made for several articles, the contract is necessarily indivisible.”
We think it clear that the trial court erred in holding that the contract was divisible.
The trial court may have been influenced in reaching its conclusion, that the contract was divisible, by certain testimony received over the plaintiffs’ objection, tending to prove that the parties orally agreed that the lumber, brick, etc., to be removed should pay the plaintiffs for the work of razing the blacksmith shop. We think that such testimony was improperly admitted. The contract was clear and unambiguous. The admission of such testimony offended against the parol-evidence rule. Hammond v. Capital City Mut. F. Ins. Co. 151 Wis. 62, 138 N. W. 92; H. H. Camp Co. v. Pabst Brewing Co. 172 Wis. 211, 178 N. W. 474; Schuhknecht v. Robers, 192 Wis. 275, 212 N. W. 657; Wheelwright v. Pure Milk Asso. 208 Wis. 40, 240 N. W. 769, 242 N. W. 486. Since the contract was, in our opinion, not divisible, and since the plaintiffs had six months from the date of the last performance of work, etc., in which to file their lien (sec. 289.06, Stats.), the contention of the city that the lien was not filed in time is without merit.
“It is well established that a conveyance of real estate, at a time when work thereon is in progress, or when the premises are subject to a lienable claim, which is thereafter perfected during the time limited by statute, does not affect the right of a materialman to a lien for materials theretofore furnished.” Citing numerous cases.
The fact that the city of Madison, a municipal corporation, was the purchaser of the land, in no way militates against the enforcement of plaintiffs’ claim for lien. In Fulton v. State Annuity and Investment Board, 204 Wis. 355, 236 N. W. 120, it was held that a state agency takes property charged with all existing liens. In that case the board took a mortgage to secure a loan on property which, at the time, was subject to claims for lien. It was there held that the lien of a contractor was prior to the lien of the mortgage taken by the board. The right of the plaintiffs to claim a lien was fixed at the time the company deeded the land to the city of Madison. It would be very unjust to hold that a purchase by a municipality of lands which are subject to claims for mechanics’ liens destroys the rights of a lien claimant, or prospective lien claimant who filed his claim for lien within the time required by law.
Nor, in our opinion, do the facts in this case bring it within the rule stated in Hutchins v. Bautch, 123 Wis. 394, 101 N. W. 671; Evans-Lee Co. v. Hoton, 190 Wis. 207, 208 N. W. 872; Capital City Lumber Co. v. Schroeder, supra, that the sale of an unfinished building which the grantor agrees to complete, may result in the grantor there
We see no escape from the conclusion that the plaintiffs are entitled to a lien on all of the lands described in their claim for lien.
By the Court. — Judgment reversed, with directions to enter judgment in favor of the plaintiffs on their claim for lien against all of the lands described therein.
A motion for a rehearing was denied, with $25 costs, on September 12, 1933.