61 Wis. 637 | Wis. | 1884
This action was brought to enforce a mechanic’s lien, arising out of the following facts: If appears that the defendants Libbey had a contract with the city of Madison for the construction of water-works. 'The plaintiff sold them three boilers, with attachments, for these works, which were placed in a building belonging to the city, and constituting a part of its works. These boilers are in the use of the city. The Libbeys failed to complete their contract, and never paid for the boilers. The defendant Hoffman,, having signed as surety the bond given by the Libbeys for the faithful performance of their contract, after they abandoned the work, to save himself from liability on his bond, with the consent of the city, proceeded-to complete the water-works according to the Libbey contract. The city has paid into court the amount found due the plaintiff for the boilers. The contest is as to what party is entitled to that mone3T. „ '
The plaintiff, as subcontractor, claims a lien under the last clause of sec. 3314, R. S. This clause, in substance, provides, where a person contracts for the purchase of machinery to be placed in any builcling in which he has no sufficient interest to sustain a lien to secure the payment-for such machinery, the person furnishing the machinery shall have and retain a lien upon the machinery, and shall have the right to remove it from the building in case there shall be default in paying for it when due, leaving the building in as good condition as it was before the machinery was placed in it. And the question is, Has this provision any application to the case at bar? We think, it has not. It has never been understood that the statutes giving a mechanic’s lien ex
In Burnham v. Fond du Lac, 15 Wis. 193; Buffham v. Racine, 26 Wis. 449; and Merrell v. Campbell, 49 Wis. 535, it was held that a municipal corporation was not subject to the ordinary process of garnishment. In 1873 the legislature enacted ch. 150, which is very nearly the same as sec. 3328, E. S. This section gives the subcontractor who has done work or furnished material to any principal contractor for
The circuit court adjudged that the plaintiff was entitled to a lien on the boilers and attachments superior in equity to the rights of any of the parties to the action, and that he had the right to remove them, leaving the building in as good condition as it was before the boilers were placed in it. The court further directed in its judgment that the city
The city has not appealed from the judgment, but, as stated by counsel on both sides, has paid the money into court, though the record does not show the fact. Rut it is doubtless the case, hence the remark was made that the contest seems to have narrowed down to the question as to who shall have this fund.' It is said if the court below did ad-. judge to the plaintiff relief beyond what the statute sanctions, still that this does not concern Hoff?nan¡ that he is in no position to complain of the judgment for that reason. But owing to his liability as surety on the Libbey bond for the faithful performance of the work, as well as from the fact that he became the assignee of the contract and completed the work, he holds such a relation to the litigation that he can object to the judgment as it now stands. He has a direct interest in reversing so much of the judgment as gives the lien, and which authorizes the city to pay the money into court and deduct the amount out of any moneys due and coming to him on the contract. This, it seems to us, is plain.
As to what direction shall be given for paying out the money in the court below is a more difficult question. It is claimed on the part of plaintiff that he has a superior right to this fund. His counsel insist that as Hoffman had the benefit of these boilers, as by means of them he performed his contract and secured the money due from the city for the work, he is bound by every principle of equity and justice to pay for them, and that the money in court should be applied to such payment. The case, he says, is analogous to that where a party voluntarily accents of services rendered or
By the Court.— That part of the judgment appealed from is reversed, and the cause is remanded for further proceedings in accordance with this opinion.