51 Wis. 292 | Wis. | 1881
Two questions are presented for consideration: Was the evidence to prove the existence of a mechanic’s lien of several thousand dollars on the property in question properly excluded by reason of the insufficiency of the answer? Was the mechanic’s lien an incumbrance, within the meaning of that word as used in the application for the insurance?
It is urged on the part of the respondents, that, in order to entitle the defendants to introduce the evidence offered, they should have alleged in their answer such facts as it would have been necessary to allege in a complaint by Nordyke, Morman & Co. to enforce the lien. Of course, as urged by counsel, the statute requires the answer to contain, in order to make it available, “ a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.” Section 2655, E. S. But the criticism is, that the answer “avers no fact; asserts only the pleader’s conclusion' that there were Encumbrances’ on the property in excess of the stipulated $5,000, without so much as indicating of what character they might be, much less
• In Grannis v. Hooker, 29 Wis., 65, the same question arose, and the opinion was written by the same learned judge; and, although he makes no reference to Thurber v. Jones, yet the court, through him, fully sanctioned the claim “that all it is necessary the complaint should contain is substantially an allegation that the defendant, has received a certain amount of money to the use of the plaintiff, as in the old form of a declaration in indebitattis assumpsit/” and it was distinctly held “that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint.” Page 67.
In Schmidt v. Pfeil, 24 Wis., 452, it was held that an allegation that the plaintiff had “ necessarily paid out a large sum of money in endeavoring to be cured,” etc., “ was sufficient to admit evidence of the amount so expended by plaintiff for medical services;” and that, if anything more was desired by the defendants, “ they should have moved to have the complaint .made more definite and certain.”
In Pettit v. Hamlyn, 43 Wis., 314, it was held that “ where there is an averment, in general terms, of an agreement to convey, it must be assumed that it was a valid agreement; and it is error to reject all evidence under the complaint for its failure to expressly allege an agreement in writing, even though the answer denies such an agreement.”
Decisions of other states, under statutes differing more or less from our own, of course are inapplicable. A motion to have the answer made more definite and certain would prob
■ This brings us to the question whether a mechanic’s lien is an incumbrance. It is in effect conceded by counsel for the respondents, “ that a covenant against incumbrances in a conveyance of land is a guaranty against the existence of any charge upon it, which will compel the grantee to pay money to relieve the land,” and hence includes a mechanic’s lien; but it is insisted that in this application “ the word ‘ incumbrance ’ is used in its popular and not its technical sense.” No case has been cited making such distinction in the use of the word “incumbrance.” Webster defines an “incumbrance” to be “ a burdensome and troublesome load;” and again, “ a burden or charge upon property; a legal claim or lien upon an estate.” It will hardly be claimed that Webster did not define the word for the use of the populace, or that he only intended such definition to include mortgages. Certainly, judgments duly rendered and docketed must be regarded as incumbrances, as used in popular speech. Is not the same true with respect to a mechanic’s lien? It would seem to be impossible to conceive of any motive which would induce an insurance company, at the time of an application for insurance, to ask whether there were any incumbrances on the property by way of mortgage, which would not be equally controlling as to incumbrances by way of judgment or mechanic’s lien. All such incumbrances affect what counsel called the “ moral hazard.” In this respect, such incumbrances are wholly unlike a highway or right of way. It is true, as stated by counsel, that “ the existence of an incumbrance adds nothing to the risk of accidental or lion-
No reported case has been cited involving the precise question here presented, nor any affirming the distinction in the use of the word incumbrance here claimed; and it seems to ns that such a distinction would be extremely technical and overnice, if not forced. The statute provides that “ every person who, as principal contractor, performs any work or labor, or furnishes any materials, in or about the erection, construction, etc., ... of any dwelling house or other building, or of any machinery erected or constructed so as to be or become a part of the freehold upon which it is situated, . . . shall have a lien thereupon, and upon the interests of the owner of such . . . building, machinery, etc., ... in and to the land upon which the same is situated, or of the person causing such manual labor to be done, . . . and such lien
■ The plaintiffs, as well as all other persons coming within its provisions, were conclusively presumed to know the contents of the statute. Assuming, as we must for the purposes of this appeal, that the defendants could have proved all they offered to prove, then, such being the facts, the plaintiffs were conclusively presumed to know that the same constituted a valid subsisting incumbrance of several thousand dollars upon the mill by reason of the lien so given by the statute; and, knowing such facts and knowing of the- Oopp mortgage, they were asked by the company, “ What incumbrance, if any, is now on said property?” and they answered, $5,000, whereas the Oopp mortgage alone amounted to that. But it was stated on. ■the argument that such a construction might avoid a large per cent, of existing policies; that any person, however responsible, was liable to forget unpaid bills for recent repairs upon 'their dwelling houses, and, without thinking of the statutory lien therefor, apply for an insurance, and honestly state in the application that there was no incumbrance thereon, and yet, technically speaking, the answer might be untrue. The suggestion is> pertinent, and we have fully considered it. But this is not such a case; and besides, courts are not organized ■to make, nor regulate the making of, contracts between parties, nor to relieve parties from provisions in contracts on the ground that, in their ppinion, in some conceivable case they
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.