231 Wis. 541 | Wis. | 1939
The only issue involved in this case is whether the complaint states a cause of action under sec. 289.16 (1) and 289.53 (1), Stats. Defendant contends that the lien sought to be asserted is for the purchase price of machinery sold to a contractor as part of his equipment, and that the statutes in their present form do- not give a lien for the purchase price of such machinery. The question raised is not without difficulty, and at the outset may best be met by considering the relevant statutory developments.
In 1929, sec. 289.16 (1), Stats., required that every public contract contain a provision for the payment by the contractor “of all claims for such work and labor performed and materials furnished,” and further required that every contractor “shall give a good and sufficient bond, the penalty of which shall not be less than the contract price, conditioned for,the faithful performance of the contract, and the payment to each and every person or party entitled thereto of all the claims for work or labor performed, and materials furnished for or in or about or under such contract.” Sec. 289.53 (1), Stats., as in force in 1929 provided that “any person, firm or corporation furnishing any material, apparatus, fixtures, machinery or labor to' any contractor for
In Wisconsin Brick Co. v. National Surety Co. (1917) 164 Wis. 585, 160 N. W. 1044, it was held that a common carrier was not entitled to a mechanic’s lien for freight charges or materials used in the project. In Webb v. Freng (1923), 181 Wis. 39, 194 N. W. 155, it was held that appliances, tools, and equipment which might be used again were not lienable materials. In Southern Surety Co. v. Metropolitan S. Comm. (1925) 187 Wis. 206, 201 N. W. 980, 204 N. W. 476, the court had under consideration the question whether under statutes allowing a lien for work, labor, and furnishing of materials there could be any lien for coal, gas, and oil consumed in connection with the job, cars, and picks, rental for hoists and concrete mixer, the boiler used in construction of a sewer, and premiums for compensation insurance. The court held that none of these items were lienable. This was followed in Southern Surety Co. v. Hotchkiss (1925), 187 Wis. 227, 201 N. W. 986, which excluded as lienable harness accessories and repairing; blacksmith services for repairing tools and outfits; veterinary services; feed, oats, bran, and hay; food furnished to workmen; oil and gas; road scrapers; and tools, hammers, and supplies. In Fidelity & D. Co. v. Milwaukee-Western F. Co. (1927) 191 Wis. 499, 210 N. W. 713, and Employers Mut. L. Ins. Co. v. Ferd. H. Grahl C. Co. (1931) 203 Wis. 315, 234 N. W. 326, it was again held that premiums for workmen’s compensation insurance were nonlienable. Muller
“Prior to 1933, sec. 289.16, Stats., contained no provisions for payment by the contractor of machinery, vehicles, etc. Accordingly, in several cases this court denied recovery for various charges then omitted from the statute. . . . Thereafter followed the legislative expansion of sec. 289.16.
“The surety under the terms of the statute is required to guarantee payment for materials furnished in or about or under such contract, including machinery and equipment.”
Neither decision deals with the scope of the extension. In the Harnischfeger Case the plaintiff sought a recovery upon the theory that the rental value of the machinery was included within the statute. In that case the machinery had been bought some years before as a part o-f the contractor’s general equipment and was not furnished for use upon the particular job involved in that case. This was the ground upon which the court denied a lien. It is our conclusion, from the, wording of the statute as well as the precedent development of the subject by this court, that the legislature had in mind that machinery, fuel, lumber, and other items
This conforms to the legislative and judicial history of this subject. The various amendments evidently were aimed at nullifying conclusions of the court that materials had to be incorporated into the job in order to constitute lienable items. The legislative purpose was tO' include items, including machinery, which were used up or consumed on the job, although not incorporated therein. As pointed out by the trial court in a well-considered opinion, this seems to be a common-sense conclusion. If a road contractor should purchase on credit expensive road equipment, the immediate use of which would be upon the job in question, the value or price of this equipment might be greater than any funds that he would have coming to him upon the job, while the equipment might be useful and available for numerous other projects. We cannot believe that the legislature intended by the amendments heretofore noted to protect the manufacturers of such equipment to any greater extent than its use value on the job for which it is furnished, for the result would be to exclude other creditors until the machinery was fully paid for.
Up tO' this point our views accord with those of the trial court. The trial court, however, was of the opinion that the complaint did not disclose the fact that plaintiff was seeking, a lien for the entire purchase price of machinery which was not in whole or in part used or consumed for the public improvement out of which the funds sought to be impressed with a lien arose. In consequence, the trial court overruled the demurrer upon the ground that the defect asserted did not appear upon the face of the complaint. While the matter is not free from doubt, we conclude that this was error. The allegation is that the—
“Plaintiff furnished the said Peterson Construction Company the following highway materials used in the construction and improvement of the highway above mentioned.”
“1 — 45' Dragline Boom with foot castings 4782, Paint Sheave 4923. Two guide rollers, boom hoist sheaves 4659, & tag line track.”
Obviously, the description is of such nature that this court cannot take judicial notice as to the character of the machinery, although the allegation might be open to- the inference that it is not such machinery as would be exhausted or used up in the project at hand. However, we think a liberal construction of the complaint would not disclose an allegation that these materials were completely consumed in the construction of the highway. If they were not, the complaint does not disclose any basis for a lien to the full amount of the purchase price, which is expressly demanded, nor are there any allegations as to the reasonable use value of the machinery upon this job. We consider that it was plaintiff’s duty to allege facts showing- that it was entitled to a lien and that this duty could only be discharged by alleging the reasonable use value of which the purchase price would be some evidence only if the equipment was wholly consumed on the job. Since this was plaintiff’s burden and it was not discharged, we conclude that the demurrer to- the complaint should have been sustained.
By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer and for further proceedings according to- law.