W. H. Pipkorn Co. v. Evangelical Lutheran St. Jacobi Society of Milwaukee

144 Wis. 501 | Wis. | 1911

KekwiN, J.

The findings of fact below are attacked on this appeal. The plaintiff was a furnisher of building materials and the defendant Stoll a contractor, and at the time he purchased the materials from the plaintiff which went into the building of the appellant he had seven jobs on hand besides the appellant’s for which he bought materials from the plaintiff.

The eighth finding of fact, which among other things finds the amount due the plaintiff, is attacked as not being supported by the evidence, and this contention is based upon the alleged failure of tbe plaintiff to credit tbe appellant with two amounts, one of $200 and tbe other of $150. These amounts were paid to plaintiff by Stoll and applied upon claims which the plaintiff had against him on account of material furnished him for other jobs, and the contention in this regard is whether or not plaintiff was justified in so applying the payments. It appears from the evidence' that no application of these amounts was made by the appellant and that plaintiff applied them on other indebtedness against Stoll for building materials which were furnished him and used in other buildings. So the question is one of application of payments. The general rule is well settled that, where a debtor makes a voluntary payment to a creditor who has several claims against him and fails to direct application of the payment on any of the claims, the creditor has the right to apply the payment to any of the claims which he has against the debtor. North v. La Flesh, 73 Wis. 520, 41 N. W. 633; Coxe Bros. & Co. v. Milbrath, 110 Wis. 499, 86 N. W. 174.

There is ample evidence to support the findings that the amounts before referred to were applied by the plaintiff as found by the court, therefore the eighth finding is supported by sufficient evidence. Whether under the facts of this case the court below would not have been justified in making the application as made in the absence of application by the plaintiff we need not decide, because we are satisfied that there is sufficient evidence to support the finding that-such application was made by plaintiff. What has heretofore been said respecting the rule of application of payments applies to the contention of appellant that the judgment in favor of the United States Gypsum Company should be reversed. The question is one of application of payment, namely, whether two items of payment made by defendant Stoll to the Gypsum Company and which were applied to extinguish Stoll’s indebtedness to that company on account of jobs other than appellant’s were properly applied. There is ample evidence to-support the findings below upholding the judgment in favor of the United States Gypsum Company.

Regarding the respondent Maxwell, Forbes &. Stillman Company it is insisted that the judgment should be reversed •on the ground that no sufficient notice of subcontractors’ lien was served upon the appellant. The objection made is that the statute (sec. 3315, Stats. 1898) was not complied with, in that the amount due was not stated in the notice, and Chandler L. Co. v. Fehlau, 137 Wis. 204, 117 N. W. 1057, is relied upon by appellant. The Chandler Case, we think, is distinguishable from the instant case. In that case there was no statement of the amount paid or the amount due, while in the present case the amount of the bill is stated and the amount paid. So the amount due is necessarily inferable from the facts stated. We think the notice was sufficient. Laev L. Co. v. Auer, 123 Wis. 178, 101 N. W. 425; Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136; West Allis L. Co. v. Wiesenthal, 141 Wis. 460, 124 N. W. 498.

It is claimed that the judgment in favor of respondent Herman Mettelmann should be reversed because Metlelmann failed to serve proper notice of lien, in that his notice was directed to “St. Jacobi Congregation (a corporation) of Milwaukee, county of Milwaukee and said state,” whereas it should have been directed to the appellant by its proper name, Fvangelical Lutheran St. Jacobi Society of the City of Mil-waulcee; and further that in the claim for lien filed the appellant is described the same as in the notice, by a wrong name.

It will be observed upon examination of secs. 3315 and 3320, Stats. (1898), that sec. 3315, respecting the notice, does not require the notice to be directed to the owner, merely that the notice shall be given to the owner, and provides what the notice shall contain, namely, “that he has been employed by sucb principal contractor or subcontractor to perform or furnish, and bas performed or furnished, such work, labor or material, with a statement of the labor performed or the materials furnished, the amount due therefor from such principal contractor or subcontractor, and that he claims the lien given by this chapter.”

It is true sec. 3320 requires the name of the person against whom the demand is made to be stated in the claim for-lien, but it also provides that the claim for lien may be amended as pleadings may be. The cross-complaint alleges that Mettel-mann gave due notice to appellant, and further alleges that he duly filed his claim for a lien, and that such claim so filed contained the name of the person against whom the claim was made, and that notice of the claim for mechanic’s lien was given “by delivering the same to Gottlieb Oestrich, president of the Evangelical Lutheran St. Jacobi Society of the Gity of MilwavJeee, and leaving the same with him.” So it will be seen that the allegations of the cross-complaint are sufficient to show service of the notice on the appellant, and that a claim for lien was duly filed which contained the name of the person against whom the demand was claimed. The court below found these facts in favor of Mettelmann, but it is said the findings are not supported by the evidence. TJpon the record before us we cannot say that the findings are not supported by the evidence. It appears from the record that the claim for lien filed in the office of the clerk of the court by Mettel-mann against the appellant was put in evidence without objection. Also notice of subcontractor’s lien with affidavit of service was offered and received without objection. It also appears from the certificate to the bill of exceptions that certain exhibits put in evidence are not in the bill of exceptions because they had been lost and could not be found. A point is also made under this head respecting application of payment, but we think the findings as to amount due are supported by tbe evidence, and tbe application oí payment was properly made under tbe rule heretofore stated. From wbat bas been said it follows that tbe judgment of tbe court below must be affirmed.

By the Court. — Tbe judgment is affirmed.