Sec. 289.02 (4), Stats., provides:
“Thе proceeds of any mortgage on land, paid to any principal contractor оr any subcontractor for improvements upon the mortgaged premises and all moneys paid to him by any owner for improvements, constitute a trust fund in the hands of any such contractor or subcontractor to the amount of all claims due and to become due or owing from such contrаctor or subcontractor for labor and materials used for such improvements until all such clаims have been paid; and the use of any of such moneys by any contractor or subcontractor for any other purpose until all claims, except those which are the subject of а bona fide dispute, have been paid in full, or pro rata in cases of a deficiency, is theft of moneys so misappropriated.”
Plaintiff contends that as a supplier of “materials used for such improvements” it is a beneficiary of the statutory trust of the moneys paid by the homeowners to the contractor, and that defendant, by expending such funds to others than beneficiaries before paying the amount due plaintiff, converted the funds and became personally liable to plaintiff. The trial court was of the opinion that the statute was not applicable tо materials furnished without designation as to specific jobs.
The statutory trust fund of moneys paid by an owner to the contractor was originally established for the payment of “claims due for labor аnd materials to persons entitled to a lien by law against said owner or his property, . . .” 1 *73 This language was interpreted in Pauly v. Keebler 2 as exсluding all persons who had been entitled to a lien but had lost that right by failing to take the necessary stеps to perfect a lien. The statute was amended in 1935 so as to cover claims due or to become due “for lienable labor and materials.” 3 In 1955 the legislature amended the statute by drоpping the word “lienable” and provided for a trust in the amount of all claims due or to become due “for labor and materials used for such improvements . . .” 4
Plaintiff-appellant admits that priоr to 1955 it would have no claim to the protection of the statutory trust as it supplied the materials without designation as to specific jobs and thus had no right to a lien. 5 Plaintiff contends, however, that sinсe the 1955 amendment it need not have a lienable claim in order to come within the protеction of the statute. Defendant argues that the 1955 amendment was not designed to eliminate the requirement that the materials be furnished with specific projects in mind, and that materials sold without designation as to use were not meant to come within the statutory trust. Indeed, the following comments of thе drafter on file with the legislative reference library tend in some degree to support his position:
“Purpose to compel preservation of trust fund and liability for embezzlement whether subcоntractors file liens or not and to full extent of their claims whether time for filing liens therefore havе expired or not. This was apparent original intent of legislature which has been so undermined by judiсial construction as to leave the section of little practical effect.”
However, before a court may review matters outside the statutory language in order to determine the meaning intended by the legislature, the statute as such must present *74 some ambiguity. Where a statute is рlain and unambiguous, interpretation is unnecessary. 6
As we recently stated: 7
“A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or morе senses. There is no ambiguity in the literal terms of the provision under consideration and it is often said thаt when the words are plain there is no room for judicial construction.
“Primarily, however, the meаning must be read from the language chosen by the legislature, and the courts are not free to dеtermine whether different provisions would have been enacted if the legislators had given somе or greater attention to the application of the statute upon a particulаr set of facts.”
Clearly plaintiff has supplied “materials used for such improvements” and the statute requires no more. It is stipulated that the materials supplied by plaintiff were incorporatеd by Super Seal into building improvements, and that the owners of such buildings paid Super Seal for its work. The statute makes no other requirement than that the materials be “used for such improvements;” it leaves no room for judicial construction. Defendant, having expended the trust funds for purposes othеr than the payment of claims as provided in the statute, is a converter of those funds and pеrsonally liable to plaintiff for the amount of its claim. 8
By the Court. — Judgment reversed, and cause remanded for the entry of judgment for plaintiff.
Notes
Ch. 213, sec. 3, Laws of 1913.
(1921),
Ch. 483, sec. 87, Laws of 1935.
Ch. 78, Laws of 1955.
See
Esslinger v. Huebner
(1868),
Estate of Ries
(1951),
State ex rel. Neelen v. Lucas
(1964), 24 Wis. (2d) 262, 267, 268,
See
State ex rel. Kropf v. Gilbert
(1933),