131 Wis. 348 | Wis. | 1907
The trial court, as indicated by an opinion filed, found three reasons why the plaintiffs could not maintain a lien against the defendant’s property, although the lumber had been furnished by them as-subcontractors of a principal contractor and in exact accordance with the principal contract. Of these reasons in their order:
1. The trial court, in substance, held that, because the principal contractor did not complete its contract by the construction of buildings and appliances satisfying its guaranty of efficiency, it could itself have maintained no lien; certainly not for any amount in excess of that which had been paid it, which was all that was payable by the terms of the contract until the efficacy of the plant could be tested; and that, since no lien could be maintained by the principal contractor at the time plaintiffs commenced their action, they could have none. Our statute on the subject of subcontractors’ liens, sec. 3315, Stats. (1898), provides substantially as follows: Every person who, as subcontractor of a principal contractor, furnishes any materials to such principal contractor for or in or about the erection, construction, etc., of any building or appurtenances thereto, may have the lien and remedy given by this chapter. Now, it is undisputed that the plaintiffs did exactly those things. They did, as subcontractors, furnish material to the principal contractor for the erection of a building and appurtenances, and such niaterials were wrought into a building and appurtenances now standing on the defendant’s land.
The query at once becomes pertinent why any court can ignore the behest of the statute that the plaintiffs have a lien. Prior to 1889- the statute itself gave one reason whenever the enforcement of a lien would compel the owner to pay more than his original contract required; but that obstacle is now removed. The trial court advances as a reason the fact that
Another ground of escape from the direct words of tbe statute conferring tbe lien, as stated by tbe trial court and urged by tbe respondent, is a rule declared or suggested in several cases, that 'the right of tbe subcontractor is referable to tbe original contract, and that what would not be “lienable” in favor of tbe principal contractor under bis contract is not lienable in favor of a subcontractor. This rule is in apparent derogation of tbe express words of the statute and therefore is to be very cautiously applied. In Goodman v. Baerlocher, supra, it was said, arguendo:
“If tbe case is such that tbe principal contractor is not entitled to a lien for any other reason than that be has been paid in full, as in case of abandonment of bis contract or of destruction of tbe building before completion, tbe subcontractors under him, and their materialmen and laborers, would not seem to be entitled to any lien.”
This language has already been criticised, if not repudiated, in Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490, and properly so, for tbe statute does not limit the right of tbe subcontractor to cases where tbe principal contractor could bave a lien, and did not do so even when it contained tbe express limitation protecting tbe owner against payment of more iban tbe contract price.
Tbe two most important cases in which has been declared the dependency of the subcontractor’s lien upon the original
“Manifestly, such right of lien is confined to work, labor, and material required by the principal contract. To that extent, by force of the statute, the owner malees the principal contractor his agent to bind his property, but no further. . . . The whole theory of it is that the owner consents to what is required to carry out the principal contract, ánd makes his property liable therefor in accordance with the statute, which is made a part of the contract.”
The logic of this case is that labor or materials expended by a subcontractor by reason of the wrongful acts of the principal contractor, not within his original contract, are not performed by the plaintiff “as a subcontractor,” for he cannot be a subcontractor where there is no principal contract contemplating such service; hence he would not fall within the words of the statute conferring a lien merely for work done “as a subcontractor.”’
In Seaman v. Biemann the holding was that a subcontractor can have no lien for work or materials where the principal contract expressly provides that no liens shall be demanded. This is upon the principle, of course, that the subcontractor, by becoming such under the principal contract, agrees to abide by such terms, and therefore by express agreement waives his lien. It is reiterated in that case that his right against the property depends upon the agency of the principal contractor created by that contract to bind the property of the owner, and that a stipulation therein against the claiming of liens for any work or materials is an express limitation upon that agency, to which the subcontractor assents by acting thereunder. In that case it was expressly declared:
*355 “Of course, where a claim is not lienable in favor of tbe principal contractor, it is not lienable in favor of the subcontractor; but, the lienabilitj of a claim being established, a subcontractor’s right to enforce it is not dependent upon whether the owner of the building might defeat it if the claim were made bj the principal contractor.”
In both of these cases we find aptly defined the true relation under our statutes between the subcontractor and the owner of the land in the declaration that within the scope of the contract the principal contractor is created the agent of the owner to subject his property to a lien in favor of the subcontractor for labor or materials. Applying that rule here, there can be, of course, no hesitation in holding that every foot of lumber, supplied by the plaintiffs upon the order of the principal contractor and used by it in constructing the buildings and their appurtenances in exact compliance with the specifications of the principal contract, was within the scope of the agency created by that document, and that the plaintiffs’ right to lien therefor cannot be affected by any consideration whether the principal contractor might be debarred of a lien by reason of the fact that nothing was owing it upon its principal contract.
2. Another ground which the trial court seems to have considered sufficient to deny plaintiffs their lien, and which respondent now urges, is somewhat indefinitely described as waiver, estoppel, or extension of time to the principal contractor. This is wholly predicated upon the fact that, when a certain payment of $1,375 was about to be made in accordance with the contract, the plaintiffs’ agent ashed the owner that it be paid to them upon the lumber bill, to which the owner responded that he could accede only upon a written order from the principal contractor. This the principal contractor refused to give, and plaintiffs’ agent so reported'to the owner. The acts of the plaintiffs’ agent are thus described by the trial court in its opinion:
“Mr. Martin did not obtain such order, desisting from pressing the foundry company for it upon representations*356 made to him by the latter, deciding to wait until the next payment was due. He so informed the president of the mining company before the company made said second payment.”
We can find in this nothing to indicate waiver, or to arouse an estoppel, or to show any extension of time of payment to the principal contractor. The plaintiffs, at most, refrained from taking legal proceedings to intercept the payment of this money by defendant to the principal contractor. They had no contract right to intercept it, and therefore could neither effectively object nor consent to its payment. They had done all they could to enable the defendant to protect itself, for they had given notice that the lumber bill had not been paid and that they wished the money to be paid to them.
3. The most serious difficulty we have had is upon the decision of the trial court that about $190 worth of lumber ordered from time to time without any specific agreement was upon independent and separate contract from the principal item in the account, which was delivered in pursuance of an accepted bid made about June 13th, and therefore that the lumber included in the original bill was not furnished within sixty days of the service of the notice for claim of subcontractors’ lien. This involves so much of a question of fact that, if there be any fair dispute in the evidence, we should probably feel concluded thereby. The statute, of course, requires that a subcontractor furnishing materials, in order to have a lien therefor, must give the notice within sixty days after such material is furnished. This, however, has always been construed as not requiring a separate notice for each service or delivery where all were so connected as to constitute substantially one transaction. In such case the furnishing has been considered as continuing throughout the whole period, so that it is not completed until the last delivery. Phillips, Mech. Liens (3d ed.) § 229; Jones, Liens (2d ed.) § 1435; Spruhen v. Stout, 52 Wis. 517, 9 N. W. 277; Dorestan v. Krieg, 66 Wis. 504, 29 N. W. 576; Wis. P. M. Co. v. Grams, 72 Wis. 275, 39 N. W.
We think it may safely be stated, as the result of experience and authority, that where one having in hand a general undertaking, such as' the erection of a building, orders and receives material to be worked into that building from time to time as construction progresses, there is generally an understanding that such purchases have relation to each other, and constitute but one transaction for the purposes of the lien statute, although there may be no express contract or agreement in advance that the owner or principal contractor will purchase, or the materialmen will furnish, all that may be called for in such construction; and that it is the custom of materialmen to keep a running account of the several deliveries as such a single transaction. Many of the above authorities sustain this view and the conclusion that a presumption to that effect is to be indulged by courts. Where, however, the continuity of such deliveries is broken by long and unusual periods of time, a presumption against the unity of the transaction doubtless arises, unless such interruption and severance in time be
In the light of these rules and the distinctions illustrated by the several decisions, let us examine the evidence in this-case, in which there is really very little conflict. The principal contractor, having taken the contract to build this mill and its appurtenances, submitted to tlie plaintiffs a long list of various sizes and dimensions of lumber to be supplied for that work. The agent conducting the business testifies that it was intended to include all the lumber necessary for the buildings, but that, almost uniformly, such attempts to specify in advance are only approximately correct, and that in almost all cases it is found that some things have been omitted. Hence,, of course, both parties, being experienced in their business, dealt with such probability in mind. Plaintiffs’ agent testifies; to the understanding that if their price on this original estimate was accepted they would be expected to furnish such,
Against this state of facts and testimony is the evidence of
After careful examination and consideration of all this Evidence we are forced to tbe conclusion that, practically without dispute, it establishes both an understanding, tacit perhaps, that plaintiffs were to be called on and would respond to furnish such other lumber as might, in accordance with usual experience, have been omitted from tbe specifications upon which they originally bid, and that both parties fully understood that all the subsequent deliveries were in pursuance of such original understanding. It is too plain for controversy that they were all so closely connected in time, and so in response to the continuous and uninterrupted construction of tbe building, .that no doubt is. cast upon tbe entire good faith of both parties so as to bring the situation within the condemnation of some of the cases above cited. We have no doubt that the ordinary dealer in building materials would consider, under similar circumstances, that he had not completed the furnishing of materials for the construction of this mill so
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with the prayer of the complaint.