123 Wis. 178 | Wis. | 1904
It is contended the court erred in confirming the finding of the referee to the effect that the material furnished by the D. K. Jeffris- Lumber Company was sold and delivered to be used by the principal contractor for, in, and about the erection and construction of the several buildings of the defendant Louis Auer. Upon examination of the proof, we find that this finding is supported by the evidence of the salesman, Mr. Brink, who was in the employ of the lumber company, and made the sale of the material to Mr. Eyan, the principal contractor. He testified that the sale of the material was made by him upon -bills presented by the contractor, specifying the materials required in the construction of these buildings, and furthermore that the lumber was sold and delivered for that purpose. It is not questioned but that the material was in fact used for, in, and about the erection and construction of the buildings owned by the defendant Louis Auer.
It is urged that the referee erred in the finding, approved by the court, that the D. K. Jeffris Lumber Company made claim for a materialman’s lien by giving notice in writing,
It is contended further that the written notice served is insufficient, under the requirements of the statute. Appellants argue that this notice should state that at the time of the sale of this material to the principal contractor it was agreed that the material was furnished to be used “for or in ox* about” the erection or construction of the buildings. The statute (sec. 3315, Stats. 1898) provides that a subcontractor of a principal contractor, furnishing any material to such principal contractor, “in any of the cases mentioned in the preceding section shall be entitled to the lien and remedy given by this chapter; if within sixty days after . . . furnishing such materials, he shall give notice in writing . . . setting forth that he has been employed by such principal contractor . . . to . . . furnish and has . . . furnished such . . . material,” etc. The words “such material” manifestly refer to material furnished under the circumstances and conditions of the preceding section, giving a lien to the principal contractors for ma
We find no errors in tbe record, and must affirm tbe judgment.
By the Court. — Tbe judgment is affirmed.
I am unable agree witb my brethren as to tbe sufficiency of tbe notice served upon tbe proprietor of tbe building. That grows out of inability to agree witb them as to the meaning of sec. 3315, Stats. 1898.
It is conceded as to tbe facts of this case that:
(1) Sec. 3314 made it a condition precedent of tbe right of tbe principal contractor to acquire a lien upon a building for material furnished to tbe proprietor thereof that such material shall be furnished “for or in or about tbe erection, construction, repair,” etc., “thereof.”
(2) A subcontractor can only acquire a lien, where, if tbe material were furnished by tbe principal contractor, be might do so.
(3) Tbe lien petition in either case must necessarily show that tbe materials were furnished as specified in sec. 3314.
(4) It is a condition precedent to tbe right of a subcontractor to acquire a lien that be shall have complied witb sec. 3315, as to giving notice to tbe proprietor of tbe building, and that it is essential to such notice that it contains all tbe features indicated by such section.
(5) Tbe notice given by tbe subcontractor in this case did not inform tbe proprietor of tbe purpose for which tbe material was furnished; — that it did no more than to inform him that tbe respondents sold tbe material mentioned to tbe principal contractor, and that tbe latter intended to use tbe same in or upon tbe building in question, and that tbe same was so used; and that tbe subcontractor claimed a lien upon such building under cb. 143, Stats. 1898. All of which might be true and tbe respondent, at tbe time of tbe sale of tbe mate
It is Reid Rere tRat sec. 3315, aforesaid, only requires tRe notice to sRow tRat tRe subcontractor fumisRed tRe principal contractor material of a lienable kind, tRe agreed price therefor, tRe amount due for tRe same and tRat tRe former claims a lien for sucR amount upon tRe building specified, under cR. 143 of tRe statutes; — tRat tRe notice is good tRougR it be entirely silent as to whether tRe materiál was fumisRed on tRe faitR of tRe building or not. I cannot agree to tRat. To me tRe statute reads plainly otherwise.
Section 3314, aforesaid, so far as material to tRe matter under discussion, reads this way:
“Every person wRo ... as principal contractor . . . fumisRes any materials . . . for or in or about tRe erection, construction, repair,” etc., “. . . of any ■dwelling Rouse, . . . sRall Rave a lien tRereupon,” etc.
Sec. 3315, aforesaid, so far as it concerns this case, reads this way:
“Every person wRo, as subcontractor of a principal contractor . . . furnishes any materials ... in any of tRe cases mentioned in tRe preceding section may Rave tRe lien and remedy given by this chapter if, within sixty days after . . . furnishing such materials, Re shall give notice in writing to the owner, or Ris agent, of the.property to be affected by such lien . . . setting forth that Re has been employed by such principal contractor ... to furnish or has fumisRed, such . . . material, with a statement of . ■ . . the materials furnished, the amount due therefor from such principal contractor . . . and that Re claims the lien given by this chapter.”
Is it not perfectly plain that the words "in any of the cases mentioned in the preceding section” refer to that part of sec. 3314 above quoted ? Again, is it not perfectly plain that the words “to furnish, or fumisRed such material” refer to the preceding words “in any of the cases,” etc., and refer thence
“Every person who, as a subcontractor of a principal contractor . . . furnishes any materials for or in or about the erection, construction, etc., "of any dwelling house ” etc.,, “may have tbe lien given by this chapter if, within sixty days after furnishing such materials, be shall give notice in writing to tbe owner, or bis agent, of tbe property to be affected by such lien . . . setting forth tbat be has . furnished materials for or in or about the erection, construction, repair,” etc., ... of any dwelling house, with a statement of tbe . . . materials furnished, tbe amount due therefor from such principal contractor . . . and' tbat be claims tbe lien given by this chapter.”
I am unable to see why my process of reasoning is not legitimate and perfectly logical and this result inevitable: the notice in this case was clearly insufficient, and tbe judgment appealed from should be reversed.