216 Wis. 173 | Wis. | 1934
It is conceded that unless the service rendered was lienable under the statute the defendant Guaranty Company is not liable. The plaintiff claims that he is
It is considered that this case is ruled by Muller v. S. J. Groves & Sons Co. 203 Wis. 203, 233 N. W. 88. In that case Muller rented a portable steam-engine with an operator for which the plaintiff was to receive $1.50 an hour while operating one crusher and $3 an hour while operating two crushers. For the agreed price plaintiff was to furnish his engine, trucks, water-hauling machinery, belts, and other equipment, all oil and supplies, exclusive of coal, and all labor necessary to operate his engine and equipment. In that case the court said, speaking by Owen, J.:
“It seems to be sanctioned, upon both reason and authority, that where tools, appliances, or instrumentalities are essential to render human labor efficient, the mechanics’ lien laws cover the value of the use of such tools and appliances as may have been furnished and used by the claimant in the performance of the labor for which a lien is claimed.” . . .
It was further held that where a machine is the dominant element in the transaction, and that labor is merely incidental to the operation of the machine, the owner of the machine is not entitled to a lien for services merely because he operates it.
There is no distinction to be drawn between this case and the Muller Case, except that the truck is a more mobile
The case at bar and the Muller Case are not in conflict with the decision in Theiler v. Consolidated Indemnity & Ins. Co. 213 Wis. 171, 250 N. W. 433. In the Theiler Case the claimant was a subcontractor and as such within the terms of the statute. The distinction between the Theiler Cáse and the Muller Case is pointed out in the opinion in the Theiler Case.
By the Court. — Judgment affirmed.