52 Wis. 517 | Wis. | 1881
There is ample justification in the record for giving the plaintiff a lien upon the flouring-mill for the amount due him on his account. There is no controversy about the number of days he worked, or as to the value of his services; but it is insisted, upon the part of the appellants, that the evidence shows that the plaintiff worked a part of the time for Newton individually and a part of the - time for the company, and that several payments were made on his account. And the contention of counsel is, that these payments were made on behalf of the firm by Newton, and should be appropriated to the discharge of the partnership debt, and could not be applied to the payment of work performed for Newton individually. The evidence shows that the plaintiff was employed by Nexoton and set to work in getting out brick from the old Tremont ruins. It is a fact clearly established that much of this brick thus got out was actually used in the construction of the firm’s mill. But it is said that these brick really belonged to Newton, were his individual property sold to the firm, and therefore the partnership ought not to be charged with the plaintiff’s services while getting them out. Conceding this to be so, that the brick were really Newton's property, still, .we think the law would give the plaintiff a
2. The next question relates to the lien of Stout and Mills. In respect to that, counsel for the appellants insists that the time limited by law for them to file their claim for a lien for machinery and articles furnished for the mill had expired before such lien was filed. This position is based upon the assumption that the claim of Stout and Mills, except as to the two items furnished in November, 1878, is for an indebtedness which accrued under a special contract bearing date March 15, 1878. It is claimed by counsel that all of the articles and machinery referred to in that contract were furnished prior to August 5, 1878, and that for the purposes of this action this must be deemed the date of the last charge. Confessedly the petition for a lien was not filed within six months from that time. But it seems to us incorrect to treat the writing or memorandum of March 15, 1878, as a complete, binding contract. It is rather in the nature of a written offer or proposition on the part of Stout & Co. to furnish Newton & Go. the articles and materials referred to therein at the prices specified. Newton & Co. did not sign this writing nor in any way bind themselves to purchase the articles. Doubtless, when they ordered any of the enumerated articles, they became bound to pay the prices stated; in other words, they accepted pro tanto the proposition or offer made. But that this memorandum amounted to a mutual, binding contract between the parties, is a position quite inconsistent with its obvious meaning and intent. Newton & Co. probably ordered articles and machinery from Stout & Co. under this written “estimate”or offer as to prices; but they also ordered machinery which Newton
It appears that from time to time Newton & Co. made orders and received machinery under the proposition. The evidence shows most conclusively that all the articles charged in the account of 8'tout do Go. were actually ordered and received by Newton & Co. With the exception of one spindle, all the articles were ordered for the mill, and were deemed necessary for its use and successful operation. It is true, it-appears that the draft-pipe had not been permanently attached to the machinery so as to become a part of the freehold when the petition for a lien was filed. But the time limited by law for Stout & Co. to file their lien would not expire until six months from the 11th of November, 1878, the date of the last charge for machinery furnished for the mill. It is very clear that there was a running account between the parties, which was not closed until November, 1878. And it is a circumstance of no little significance that on the loth of that month the parties settled and adjusted their accounts, and agreed upon the balance due Stout & Co. for articles and machinery furnished, and notes were given for such amount. After such a settlement all question as to the amount due or as to articles ordered and furnished should be put at rest. There was a deduction made by the referee and court from the claim of Stout & Co., but the latter made no complaint about this; therefore the question whether the deduction was right or wrong need not be considered.
But it is said, in no event could Stout & Co. have a lien for the draft tube, the price of which was included in their account, and in the note given by Newton & Co. The draft tube was procured, intended to be placed under the water wheel, so as to increase the power, but was not actually annexed
3. The remaining question refers to the costs. In Willer v. Bergenthal, 50 Wis., 474, it was held that a suit under the present statute to foreclose a mechanic’s lien was an equitable action, and of course the costs would be regulated by the rules applicable to that class of cases. In' this case, conforming to the present statute, all persons who had filed liens and all mortgagees were made parties defendant. So far as we are able to judge from the bill of exceptions, there was no question as to the liens of any of the parties except the plaintiff and Stout & Co. As to the right of the latter firm, to a lien for their claim, there seems to have been a sharp contest. In the taxation of costs, they taxed $14-for procuring and serving a copy of the referee’s findings, and also the notice to confirm the report. The plaintiff did not tax costs for a copy of the findings, and there was no taxation except for the copy procured by Stout & Co. The $14 was allowed them in the taxation, and, as we think, properly. The matter of costs in equitable actions is always within the discretion of the court, and it is idle to say there was any abuse of that discretion in allowing that item to Stout & Co. They and not the plaintiff performed the service or incurred the expense of the copy
Upon the whole record, we think the judgment was correct and must be affirmed.
By the Court.— Judgment affirmed.