Francis & Nygren Foundry Co. v. King Knob Coal Co., 142 Wis. 619

142 Wis. 619 | Wis. | 1910

Dodge, J.

.The primary question is whether a subcontractor by merely delivering material to the contractor at his place of business which the latter never incorporates with the structure upon which the lien is claimed, nor even delivers to the,premises or control of the owner of that structure, can be said to have furnished that material for, in, or about the construction of the machinery in the true sense of those words as used in sec. 3315, Stats. (1898). The expressions of every decision in this state are adverse to any such conclusion. It has been asserted or assumed from the earliest days that incorporation of the materials into the structure was an essential to a subcontractor’s lien therefor. Jessup v. Stone, 13 Wis. 466, 471; Heath v. Solles, 73 Wis. 217, 220, 222, 40 N. W. 804; Hall v. Banks, 79 Wis. 229, 233, 48 N. W. 385; Mallory v. La Crosse A. Co. 80 Wis. 170, 175, 49 N. W. 1071; Brown & H. Co. v. Trane, 98 Wis. 1, 73 N. W. 561; McAuliffe v. Jorgenson, 107 Wis. 132, 134, 82 N. W. 706; Rinzel v. Stumpf, 116 Wis. 287, 290, 93 N. W. 36; Laev L. Co. v. Auer, 123 Wis. 178, 183, 101 N. W. 425; Taylor v. Dall L. & Z. Co. 131 Wis. 348, 355, 111 N. W. 490. It is true that the exact distinction was not presented for decision by the facts of any of the cases cited, so that the remarks in the decisions' are in a degree obiter, but nevertheless they are significant of the view of the court as to' proper construction of this lien statute, which construction is therefore confirmed by the many years of persistency without legislative attempt to modify it in this particular. In many other states having statutes with substantially equivalent language to our own there are numerous decisions upon the exact question, many of them declaring actual incorporation and annexation to the realty to be essential, though in some there is permitted as apparently equivalent delivery of the property into the control of the owner. Simmons, G. & Co. v. Carrier, 60 Mo. 581, 584; Schulenberg v. Prairie Home Inst. 65 Mo. 295; Potter Mfg. Co. v. A. B. Meyer & Co. 171 Ind. 513, 86 N. E. 837; McConnell v. Hewes, 50 W. Va. 33, 40 S. E. 436; W. P. Fuller & Co. v. Ryan, 44 Wash. 385, 87 Pac. 485; Hill v. Bowers, 45 Kan. 592, 26 Pac. 13; Hunter v. Blanchard, 18 Ill. 318. In the face of this array of judicial decision we find none either in this state or in states having equivalent statutes asserting the sufficiency of facts like those in the present case to constitute a “furnishing” so as to arouse a lien. True, this court has decided that in the case of a principal contractor the delivery on the premises of materials upon a contract with the owner that they should be used in the structure will entitle him to a lien therefor, although the owner sells them and uses others in their place. Esslinger v. Huebner, 22 Wis. 632. But the facts in that case radically ■distinguish it from the present. There the material was delivered into the control of the owner, and he by his own wrong prevented its incorporation into the building as intended and expected by the seller and as agreed to he done by such owner. The diversion from that purpose was in breach of the owner’s own contract with the lien claimant. Here the owner had no means of protecting itself, and was in no way responsible for the nonuse of the material, and owed no contract duty to the plaintiff to apply it in construction of the machinery.

The intent of the legislature seems to be clearly indicated by the final sentence of sec. 3315, Stats. (1898), imposing penalty on a principal contractor who sells or misappropriates material delivered to him by a subcontractor without his consent and with intent to defraud the latter. Obviously, if such a delivery aroused the lien, the subcontractor could not be defrauded by the misappropriation of the material The owner would be the sufferer and the person whose consent to diversion ought to control. Simmons v. Carrier, supra, holds such a provision conclusive of the legislative purpose. Eur-ther, there are many considerations of probable wrong to the •owner against which no reasonable diligence or watchfulness can guard him if mere delivery, without his knowledge, to the principal contractor may suffice to make him liable, many of which are pointed out in the decisions above cited; while the superior opportunities for the materialman by watchfulness and diligence to see to it that material which he knowingly sells for use upon certain premises shall at least reach those premises and their owner axe so obvious that we are constrained to agreement, on reason, with the clear weight of authority as above set forth, and to hold on the facts here, where the material neither enters into the structure nor even reaches the control of the owner, that it is not such a furnishing as the statute intends and requires, and that therefore the material delivered on October 26th at the principal contractor’s place of business in Chicago and by him or his receiver in bankruptcy sold away from the owner was not so furnished. Hence the last charge for furnishing any lien-able material was October 14th, and more than sixty days before any notice was given by the plaintiff to entitle it to a subcontractor’s lien.

The conclusion is of course obvious, without discussing further objections urged by one or other of the appellants, that plaintiff is entitled to no lien either upon the machinery contracted for by the King Knob Goal Company or upon the land of the Chicago, Milwaukee & St. Paul Railway Company upon which such machinery was to be erected.

By the Court. — 'Judgment reversed, and cause remanded with directions to dismiss the complaint.