107 Wis. 92 | Wis. | 1900
Three questions are presented for consideration on this appeal: (1) What was the indebtedness of defendant to plaintiff for the work rendered by the latter, mentioned in the complaint? (2) Is an architect entitled to a lien, under sec. 3314, Stats. 1898, for compensation for making plans, specifications, and estimates for a contemplated building upon the land of another, if the construction of the building, pursuant to such plans, be commenced, though the use ■of them be abandoned before anything is done except a part ■of the excavating for the basement ? (3) Was the construction of the building commenced according to the plans and ¡specifications furnished by plaintiff ?
1. Appellant’s counsel contended that, respondent having .agreed in writing to make plans and specifications for the building and to superintend its erection for the stipulated price of $1,000, an express contract was necessary to give him' a legal claim upon the appellant for services rendered
How the trial court found, on such evidence that the find
The accepted order for the second set of plans was rightly decided by the trial court to constitute a new contract having no relation to the work under the written contract, and not governed thereby except as to the price for the new work. Nothing having been said about compensation therefor, it was fair to presúmelas the trial court did, that both parties contemplated that it would be paid for at the same-rate as the original work of the same nature, called for by the writing.
It is considered that there were two separate and distinct contracts in this case as plainly as there was in Hand v. Agen, 96 Wis. 493. The first contract, exclusive of the work of superintending the construction of the building, having-been fully executed, the rule announced in Boody v. R. & B. R. Co. 24 Vt. 665, applies: “Where the parties [under a special contract] deviate from the original plan agreed upon, and the terms of the original contract do not appear-to be applicable to the new work, it being beyond what was originally contemplated by the parties, it is undoubtedly to-be regarded and treated as a work wholly extra, out of the-scope of the contract, and may be recovered for as such.”
We do not understand that, conceding the above theory
2. The right .to a lien under oh. 143, Stats. 1898, for work done in the construction of a building, is not dependent upon whether a building is actually constructed, but upon whether such construction is commenced. If the latter circumstance occur, and lienable work be done in aid thereof, the right of lien thereby becomes perfect and cannot thereafter be defeated by any act of the proprietor. The language of sec. 3314 is that the lien for work done in the construction of a building shall be prior to any other lien which originates subsequent to the commencement of such construction. Sec. 3321 provides for joining in one action all claims on the property affected. Sec. 3324 provides that the judgment shall direct a sale of all the right, title, and interest which the owner had in the property at the time of the commencement of the work. And sec. 3325 provides for the distribution of the proceeds of a sale made pursuant to the judgment, among all the lien clairhants without priority, clearly indicating that, without reference to when the indebtedness of the respective lien claimants on the same property accrued, if there be several and the liens be for work done or material furnished in the construction of a building, they shall all attach at the same time; that is, at the time of the commencement of the construction. That was decided to have been the legislative intention in Vilas v. McDonough Mfg. Co. 91 Wis. 607, where it was held that the right of lien for machinery manufactured and furnished for a sawmill after the commencement of the construction of the mill building, related back and attached to the property at the time of the commencement of such construction, regardless of when work commenced on the machinery at the factory or when it was attached to such building, and took prece-
Statutes similar to ours exist in Indiana, Kansas, Maryland, New Jersey, and other states, and have been construed there as in Vilas v. McDonough Mfg. Co., the courts m some instances remarking that such statutes evidence the intent indicated so plainly as to leave no room for judicial construction. Kansas M. Co. v. Weyerhaeuser, 48 Kan. 335.
So these two things only are necessary to respondent’s right of lien: indebtedness of appellant to him for work done, that appellant knew or ought to have known respondent supposed was on account of a building to be presently, or in the near futui-e, constructed; and the comiRencement of such construction. If the construction of the building the plans were made for was actually commenced, according to such plans, the lien then attached and could not thereafter be defeated by any act on the part of appellant. The principle applies, that if a person sell material for use in the construction of a building, and such construction be commenced so that a lien may attach to the property, the seller is entitled to his lien thereon, whether such material be actually used in the building or not. Esslinger v. Huebner, 22 Wis. 632; Spruhen v. Stout, 52 Wis. 517. That is in perfect harmony with Foster v. Tierney, 91 Iowa, 253, relied upon by appellant. The trouble there was that the construction of the building -was not commenced, so the lien, necessarily, could not attach.
3. There is left to be considered the question of whether the building was commenced pursuant to accepted plans furnished by respondent. We use the term “ accepted plans ” only because such plans were essential under the contract to entitle respondent to compensation for his work. On the subject of this last question, we cannot say the finding of the trial court is against the clear preponderance of the evidence. The commencement of the excavation was the
In the last two cases cited it was held, in effect, that if the excavation for the foundation be commenced, the building is commenced, and there is a building within the meaning of the lien statute, and lienable claims will attach to the. property and remain liens thereon till discharged by fail
Guided by the foregoing, the finding of the court that the building which the plans in question were made for was. commenced pursuant thereto, was based on the following: Plaintiff testified that he delivered the completed plans and specifications to Mr. Walsh, who thereafter had them at his office and used them in negotiating with contractors. There was evidence tending to show that a Mr. Shea was employed by Walsh to make the excavation; that'Shea obtained from his employer a section of the plans and delivered it to the city engineer for use, and that it was used by such engineer in setting the stakes to indicate the boundaries of the foundation; that the engineer afterwards did his work over at the special request of Walsh, who furnished him a section of the plans; that such section was delivered by the engineer to Fitzgerald; that Walsh subsequently called on Fitzgerald for that part of the plans; that Shea did over 1,000 yards of the excavating work, largely, if not all, prior to January 21, 1899; that on such day Walsh sent the plans back to Fitzgerald, indicating that he did not intend to malee any further use of them; and that such event was preceded, by a few days only, by a rupture between Walsh and Fitzgerald., and a refusal by the former to pay the latter anything on account of his work, and the employment by the latter of attorneys to seek redress in the courts.
In view of that state of the record, we cannot say the trial court was not warranted in deciding that the building for which the respondent prepared the plans and specifications whs actually commenced, and that his right of lien attached to the improvement, as a building, in contemplation of the lien statute, and to all the right, title, and interest of the owner at the time of the commencement of the construction of such building, which could not thereafter be extin
The foregoing renders it unnecessary to consider any -other question presented by the appellant. It requires the affirmance of the judgment appealed' from.
By the Gourt.— So ordered.