Wheeler v. Hall

41 Wis. 447 | Wis. | 1877

LyoN, J.

I. "We think the complaint contains averments of fact which, if proved, establish the personal liability of the appellant, Lucy Hall, to the plaintiff, for his work upon the mills. The case made by the complaint is briefly this: Lucy Hall held the legal title to the premises on which stood the mills and machinery which the plaintiff assisted to erect and repair; James was in the actual occupancy of the premises; and the mills thereon were managed, run, operated and controlled by both defendants. It is not alleged that James was the exclusive occupant of the mills, and it is a fair inference from the whole complaint that they were occupied in common by James and Lucy. It certainly appears therefrom that Lucy, with the full knowledge that the plaintiff had been employed to do the work and had performed it, accepted the benefit of his labor. Such being the situation of the property as to title and occupancy, James, with the knowledge,- consent and approbation of Lucy, employed the plaintiff to work on the machinery in the mills, and with like knowledge, approbation and consent on her part, the plaintiff performed the work, and when performed the same enured to her benefit.

On the principle that if one accepts or knowingly avails himself of the benefit of services done for him without his authority or request, he shall be held to pay for them (1 Ohitty on Contracts, 11th Am. ed., 80, note(s), and cases cited), Lucy would have been liable personally to the plaintiff for his work, even though James had employed the plaintiff without her knowledge. How much stronger, then, is the case against her when James employed the plaintiff to work on her mills and machinery with her knowledge, consent and approbation.

Inasmuch as it appears from the complaint that the appellant is personally liable to pay the plaintiff for his work, it necessarily follows that he is entitled to a lien for the amount thereof upon her interest in the premises upon which such work was done.

We do not hold that if the work was done solely for the convenience and accommodation of James, although with the permission of Lucy, she would be bound to pay for it, or that her land could be subjected to a lien therefor. We have no such case before us. The averment is that the work was done for both defendants; and, as we have seen, the facts al leged show that it was done for Lucy as well as for James. See Wells v. Banister, 4 Mass., 514; Knowlton v. Plantation No. 4, 14 Me., 20.

II. It is claimed that che complaint fails to show that the plaintiff has filed in the proper office such a petition as entitles him to a lien. The averment is, that he filed in the office of the clerk of the court his petition in accordance with the statute in such case made and provided, and there is no specific statement of the contents of the petition. If the complaint is defective in this particular, the demurrer does not reach the defect; for we have already seen that a valid cause of action is stated in the complaint against the appellant, even though the lien prayed for cannot be enforced under it. We do not decide, therefore, whether the complaint is or is not sufficient to authorize the court to enforce the lien as therein prayed; but we suggest that it would be the better mode to insert in the complaint a brief statement of the contents of the petition, as was done in Rice v. Hall, decided herewith. The circuit court will doubtless permit the complaint to be amended in that particular, should the plaintiff ask leave to amend it.

No other objection is made to the complaint.

By the Coxvrt. — Order affirmed.