Laev Lumber Co. v. Auer

| Wis. | Nov 15, 1904

SiebecKee, J.

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, as required by the statute, to the owner of the buildings, that it had been employed by the principal contractor to furnish and that it did furnish him materials, with a statement of the material furnished, and the amount due therefor from the principal contractor. This finding is first assailed upon the ground that no proof of the proper service of this notice upon the owner was made. ' The statute provides that such service may be made'upon the owner or his agent, if to be found in the county where the property is situated, and, if neither can be found therein, by filing the notice in the office of the clerk of the circuit court of such county. The notice was served upon Mr. Fehr, then in the employ of the owner, who was out of the state. It appears that Fehr attended to the business of Mr. Auerixn his absence, and had authority to represent him in transactions pertaining to his business affairs. These circumstances, as established by the evidence, clearly show service of this notice upon the owner’s agent. .

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 material fumisbecL to be used “for or in or about” the erection or construction of buildings. It is apparent that no such lien can be maintained unless the material so furnished was used “for or in or about” the erection or construction of the building. Does the statute, however, require these conditions of the sale and delivery of the materials so furnished to be set forth in the notice ? The statute requires that the notice shall set forth that he has been employed by the principal contractor to furnish and that he has furnished such material, with a statement of the material.furnished, and the amount due therefor from the principal contractor, and that he claims the lien given by the chapter. The requirement that the subcontractor shall set forth in the notice that he has been employed to furnish and has furnished such material does not import that the purposes and conditions of the sale and delivery of the material to the principal contractor shall be set out in the notice. If it sets forth the facts that he was employed to furnish and that he did furnish material as specified for the erection and construction of the building, with the amount due from the. principal contractor, the terms and conditions of the statute are fulfilled. The purposes of this statute are twofold — first, to secure payment to persons who furnish material or perform labor upon the structures therein mentioned and, second, to apprise the owner that a claim therefor is made for the amount due for such labor or material. These purposes are fulfilled by a notice setting forth the facts as above stated. We find no express requirement in the language of the statute that the terms and conditions of furnishing the material to the principal contractor should be set out in the notice for a claim for a lien, and we find that the objects of the statute are fully accomplished by a notice for a claim of a lien setting forth that the claimant was employed by the principal contractor to furnish and that he did furnish material as specified for the erection and construction of the building. The notice given by the D. K. Jeffris Lum-her Company meets these requirements, and is sufficient under tbe statute.

We find no errors in tbe record, and must affirm tbe judgment.

By the Court. — Tbe judgment is affirmed.

Maeshall, J.

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 material, Rave Rad no idea wRatever as to what nse tRe pnrcRaser intended to put tRe same to, mncR less tRat tRe seller fumisRed sncR material on tRe faitR of any prospective nse thereof.

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 to tbe aforesaid feature of sec. 3314? I cannot escape tbe conclusion tbat it is. If I am right, tben tbe true meaning” of tbe section can readily be made unmistakable by interpolating into it in place of “in tbe cases mentioned in tbe preceding section” tbe antecedent thereof, and in place of “been employed by such principal contractor to furnish, cr has furnished such materials” tbat which such words relate to, thus r

“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.