Wiedenbeck-Dobelin Co. v. Mahoney

160 Wis. 641 | Wis. | 1915

SiebecKeb, J.

Tbe trial court found that tbe material furnished by tbe Tawlcey-Crowley Lumber Company and used by tbe Construction Company for form boxes is not lienable because it was not incorporated into the building; that tbe boxes were removed and remain fit for use for construction of other buildings. Tbe evidence sustains this finding of fact. It is claimed by tbe owners of tbe building that tbe I/umber Company forfeited their right to any lien on their property because they knowingly included tbe material used for these form boxes in their claim for lien as material used in tbe construction of tbe building. This contention must fail for tbe reasons (1) that tbe material for form boxes was fully paid for by tbe Construction Company on January 23, 1913, and (2) it does not appear that tbe Lumber Company knowingly made any claim for such material in their notice of claim for lien. It is without dispute in tbe evidence that tbe payment of $800 to tbe Lumber Company on January 23d constituted in fact full payment of all that was then due for material furnished by tbe Lumber Company under its contract. Tbe omission of tbe Lumber Company to enter it on its books as a full discharge of its account to date against tbe Construction Company does not prevent this result. Tbe fact is, it was a payment of its claim and should be so regarded under tbe facts and circumstances of tbe .case. There is no difficulty in separating this portion of tbe account from tbe charges for material thereafter furnished, and the statement of account attached to the notice of claim for lien is in no way open to tbe objection that lienable and nonlienable items of material as included in tbe account cannot be ascertained and separated. Tbe circuit court properly held “that it is possible from snob notice and claim to ascertain tbe amount and value of tbe lumber used in these form boxes; that equity requires that tbe payments be first applied to these separable nonlienable items.” North v. La Flesh, 13 Wis. 520, 41 N. W. 633. The facts of this ease clearly distinguish it from the case of Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36. In that case the court points out the reason for loss of lien by the claimant, namely: “The trouble here is that there is no evidence presented in the bill of exceptions which enables us to fix the price of the tables or the shelving. The bid of the plaintiff was to do the work for a lump sum; hence, it not appearing how much the lienable and nonlienable articles were to cost, the judgment cannot stand.” The decisions of this court declare that the mechanic’s lien laws provide new and additional remedies to those of the common law and are to be liberally construed to accomplish their equitable purpose of aiding materialmen and laborers to obtain compensation for material used and services bestowed upon property of another and thereby enhancing its value. The right to liens recognized in our law rests on principles of equity and business necessity. In the enforcement of this right courts recognize its nature and impose on parties asserting it the duty that they “must come into equity with clean hands.” If the party has complied with the statute by giving the required notice and properly filed his claim for lien, this right thereto is not to be defeated by innocent mistakes. The courts generally declare that, “. . . in the absence of fraud or bad faith, the mere fact that a lien is claimed for some items for which no lien exists, and is therefore excessive, will not defeat the whole lien.” 20 Am. & Eng. Ency. of Law (2d ed.) 411; Springer L. Asso. v. Ford, 168 U. S. 513, 18 Sup. Ct. 170; Gerard B. Allen & Co. v. Frumet M. & S. Co. 73 Mo. 688.

The court found as a fact that the American Cement Plaster Company knowingly and intentionally included in its claim for lien against tbe property of tbe Mahoney sisters items for plaster wbicb tbe company bad supplied to tbe Construction Company to be used and wbicb was used in other buildings, and that these items cannot be ascertained and separated from those actually used in and for tbe Mahoney building. We 'think tbe court erred in these findings of fact. From the evidence, as shown in tbe above statement of facts, it appears that no one at tbe home office of tbe Cement Plaster Company bad any knowledge that tbe statement of items for wbicb a lien was claimed contained charges for plaster not used in the Mahoney building. Nor does tbe evidence disclose that Healy knew a claim of lien was being made for such items. Tbe transactions of the company and its-attorneys indicate with reasonable distinctness that they were mistaken in believing that tbe balance due on tbe company’s account was for plaster used in tbe Mahoney building. True, Mr. ITealy may have been negligent in not taking tbe necessary steps to separate from tbe charges embraced in tbe claim of lien against tbe Mahoney building those actually used in another building, but. there is no evidence that be did so with intent to defraud tbe Mahoney sisters. We are of the view that inclusion of tbe items of plaster used in tbe De Longe building in this claim of lien is attributable to inadvertence and mistake and without any intent to defraud and therefore should not defeat tbe Cement Plaster Company’s right to a lien for tbe material wbicb was in fact used in and for the erection of the building. Tbe evidence shows definitely what amount remained unpaid on tbe account for material used in tbe Mahoney building after tbe payment of tbe $114 due for material used in tbe De Longe building and tbe credit of $146.60 for sacks returned. We discover no difficulty in ascertaining from the statement accompanying tbe notice of claim of lien and the deduction of these last two credits that tbe amount due and unpaid for plaster us§d in tbe Mahoney building is $204.80. The judgment of the trial court denying the dement Plaster Company's right to a lien on the premises involved must be reversed.

By the Gourt. — That part of the judgment from which Margaret E. Mahoney, Josephine S. Mahoney, and Equitable Surety Company appealed is affirmed, and that part from which the American Cement Plaster Company appealed is reversed, and the cause remanded with directions to award the American Cement Plaster Company a lien on the premises involved in the action and the right of this company to join in the foreclosure and sale of such premises as the judgment awards to other lienors.