94 Wis. 578 | Wis. | 1896
At the times herein mentioned the defendant Mrs. Fra/nees A. Atkinson was the owner and in possession of the lands described. December 1,1892, Anton Mauk, G. W. Canner & Co., Cook & Hyde, the Winkle Terra Cotta Company, Richard Riesen, Jr., Oharles and Arthwr Polaeheok, and James Toombs, as parties of the first part, entered into a written agreement with Mrs. Atkinson, as party of the second part, wherein and whereby “ the said party of the first part, jointly and severally, their heirs, executors, administrators, and assigns,” for and in consideration of the payments to be made by the party of the second part, as therein specified, did in effect contract and agree to build, furnish, and completó, in a careful, skilful, and workmanlike manner, to the full and complete satisfaction -oí W. A. Holbrook, superintendent, and by and at the times mentioned in the specifications therein referred to, the full and entire masonry, painting and glazing, cut stone, terra cotta, carpenter work, plumbing and gas fitting, tin work, heating and ventilating without furnaces, furnishing all materials required for the erection of an apartment building on La Fayette Place, city, for party of the second part as aforesaid, so as to fully carry out the design of said work as is set forth in said specifications and the plans and drawings therein especially referred to, such
The complaint is in the usual form, alleging the requisite notice, petition, etc., and also that claims had been filed by other subcontractors and contractors, who were defendants herein, in the aggregate amount of $1,601.54. Mrs. Atkinson interposed an answer, admitting such of the allegations of the complaint as entitled the plaintiff to a subcontractor’s lien, providing anything might be due to it as subcontractor,
Thereupon the cause was referred to a referee, who, at the close of the trial of the cause before him, and after finding the execution of the written contract mentioned, found, in effect, that the principal contractor commenced the building, and completed the same in May, 1893; that ten subcontractors (including the plaintiff) under the principal contractor, Richard Eiesen, Jr., had given notices and filed and had liens upon the premises, in the aggregate amount of $2,498.63, of which sum $1,303.96 was in favor of the plaintiff, and that they were, respectively, entitled to recover the same; that the principal contractor Anton Maulé have and recover of Mrs. Atkinson the sum of $979, with interest thereon from July 28,1893, and that the same was a lien on the said building and premises; that the principal contractors Charles and Arthur Polaohecle have and recover of Mrs. Atkinson the sum of $400.88, with interest from May 29,. 1893, and that the same was a lien on said building and premises; that the respective parties having such liens; were severally entitled to judgment in their favor herein. Thereupon the report of the referee was confirmed by the court, and judgment ordered to be entered thereon accord
1. As indicated, the seven principal contractors “jointly and severally ” contracted and agreed to build, finish, and complete the building at the time and in the manner prescribed, and when so completed Mrs. Atldnson was to pay them therefor $9,528.76, at the times and in the manner therein agreed. Eighty-five per cent, of the pro rata value of the work and materials was to be paid in monthly in-stalments as the job progressed, and the balance remaining due to be paid in full “ upon completion and acceptance of the work, and upon its being satisfactorily shown that all claims ” which might become liens thereon had been paid. The total amount to be paid to Richard Riesen, Jr., under that contract, was $4,130.76; and the amount of outstanding unpaid subcontractors’ liens, under Riesen, thereon, as appears from the referee’s report, is $2,498.63, besides interest; and the amount of such “ outstanding subcontractors’ claims which have been proved, . . . exceed the difference between the contract price and the amount paid to the principal contractors.” Such being the state of the record, it was error to allow two of the seven “ joint and several” principal contractors thus in default to have judgments in their favor for liens as such principal contractors. That the seven contracted “jointly and severally” with Mrs. Atldnson is too plain, from the express language of the contract, to admit of argument or call for the citation of authority. The payment-of such excessive outstanding subcontractors’ liens was, under the contract, a condition precedent to the enforcement of a lien in favor of any such principal contractors.
2. Resides, under the contract, the workmanship and materials on the part of such several principal contractors were
By the Cohort.— Those parts of the judgment of the superior court of Milwaukee county appealed from are reversed, and the cause is remanded for further proceedings according to law.
