Spruhen v. Stout

Cole, C. J. There is ample justification in the record for giving the plaintiff a lien upon the flouring-mill for the amount due him on his account. There is no controversy about the number of days he worked, or as to the value of his services; but it is insisted, upon the part of the appellants, that the evidence shows that the plaintiff worked a part of the time for Newton individually and a part of the - time for the company, and that several payments were made on his account. And the contention of counsel is, that these payments were made on behalf of the firm by Newton, and should be appropriated to the discharge of the partnership debt, and could not be applied to the payment of work performed for Newton individually. The evidence shows that the plaintiff was employed by Nexoton and set to work in getting out brick from the old Tremont ruins. It is a fact clearly established that much of this brick thus got out was actually used in the construction of the firm’s mill. But it is said that these brick really belonged to Newton, were his individual property sold to the firm, and therefore the partnership ought not to be charged with the plaintiff’s services while getting them out. Conceding this to be so, that the brick were really Newton's property, still, .we think the law would give the plaintiff a — 522 — lien upon the mill for the work performed by him in getting out brick which were used in its construction. The plaintiff, while thus employed, would be deemed a laborer engaged in aiding in the erection of the mill and providing materials for the same, within the spirit and intent of the statute. Chapter 153, Tay. Stats. About this there would seem to be no ground for doubt. But, however this may be, it appears that the plaintiff was not informed, nor did he know, that he was working at -any time for Newton individually, if such was the fact. He doubtless supposed, and had the right to conclude, he was in the employ of the firm all the time. Nor had he any means of knowing that the brick in theTremont ruins did not belong to the partnership. He worked all the time as directed by Newton, under the same engagement, sometimes on the mill and sometimes in getting out brick. What portion of his time was taken up in getting out brick which did not actually go into the mill, but were sold to other parties, it is impossible to tell from the evidence. And when Newton made payments on the account, he did not intimate or inform the plaintiff that part of the items in the account only were partnership debts, and that the payments must be applied in discharge of those items. When, then, at the trial, it was claimed that a part of the work was performed for Newton individually, and the plaintiff declared his election to apply the payments already made to the discharge of that debt, we do not think it was error on the part of the referee and court to permit him to make such an application; for, as we have said, the plaintiff had the right, under the circumstances, to suppose he was working for the firm all the time under the same contract of hiring. Having been employed by Newton in the first instance, working as directed by him, now on the mill, then in getting out brick from the Tremon trains, without notice from any one that any of his work was the individual concern of Newton, the plaintiff had the right to assume that he was in the employ of the partnership all the time. It was certainly in — 523 — the power of the partners to undeceive him in that regard, and let him know what w.ere partnership concerns and what not. The plaintiff surely could not know about the private arrangements of the partners, or what was an individual matter. Apparently he was in the service of the partnership all the time, and had the right to look to the firm for the pay of all his services. 2. The next question relates to the lien of Stout and Mills. In respect to that, counsel for the appellants insists that the time limited by law for them to file their claim for a lien for machinery and articles furnished for the mill had expired before such lien was filed. This position is based upon the assumption that the claim of Stout and Mills, except as to the two items furnished in November, 1878, is for an indebtedness which accrued under a special contract bearing date March 15, 1878. It is claimed by counsel that all of the articles and machinery referred to in that contract were furnished prior to August 5, 1878, and that for the purposes of this action this must be deemed the date of the last charge. Confessedly the petition for a lien was not filed within six months from that time. But it seems to us incorrect to treat the writing or memorandum of March 15, 1878, as a complete, binding contract. It is rather in the nature of a written offer or proposition on the part of Stout & Co. to furnish Newton & Go. the articles and materials referred to therein at the prices specified. Newton & Co. did not sign this writing nor in any way bind themselves to purchase the articles. Doubtless, when they ordered any of the enumerated articles, they became bound to pay the prices stated; in other words, they accepted pro tanto the proposition or offer made. But that this memorandum amounted to a mutual, binding contract between the parties, is a position quite inconsistent with its obvious meaning and intent. Newton & Co. probably ordered articles and machinery from Stout & Co. under this written “estimate”or offer as to prices; but they also ordered machinery which Newton — 524 — himself says would not come under the written proposition. We cannot, therefore, look upon the written memorandum as amounting to a binding contract, but it should be treated merely as a proposal to furnish certain articles and machinery for the mill for the prices named. It appears that from time to time Newton & Co. made orders and received machinery under the proposition. The evidence shows most conclusively that all the articles charged in the account of 8'tout do Go. were actually ordered and received by Newton & Co. With the exception of one spindle, all the articles were ordered for the mill, and were deemed necessary for its use and successful operation. It is true, it-appears that the draft-pipe had not been permanently attached to the machinery so as to become a part of the freehold when the petition for a lien was filed. But the time limited by law for Stout & Co. to file their lien would not expire until six months from the 11th of November, 1878, the date of the last charge for machinery furnished for the mill. It is very clear that there was a running account between the parties, which was not closed until November, 1878. And it is a circumstance of no little significance that on the loth of that month the parties settled and adjusted their accounts, and agreed upon the balance due Stout & Co. for articles and machinery furnished, and notes were given for such amount. After such a settlement all question as to the amount due or as to articles ordered and furnished should be put at rest. There was a deduction made by the referee and court from the claim of Stout & Co., but the latter made no complaint about this; therefore the question whether the deduction was right or wrong need not be considered. But it is said, in no event could Stout & Co. have a lien for the draft tube, the price of which was included in their account, and in the note given by Newton & Co. The draft tube was procured, intended to be placed under the water wheel, so as to increase the power, but was not actually annexed — 525 — to the machinery-or mill so as to become a fixture when the lien was filed. And the question is, Can Siout & Co. have a lien on the mill for the price of the draft tube? As against the owners of the building, or their assignee, they undoubtedly could, within the decision of Cooper v. Cleghorn, 50 Wis., 113. Indeed, the remarks made in that case, on page 122, are strictly applicable to the question before us. The draft tube, though not so attached to the machinery as to become a part of the freehold, was ordered and designed to be attached or permanently annexed to the mill, so as to become a fixture. This was the purpose for which it was procured, and it was doubtless the neglect of Newton & Co. that it was not permanently attached. Under the circumstances there is nothing inequitable in giving Stout & Co. a lien for the price. 3. The remaining question refers to the costs. In Willer v. Bergenthal, 50 Wis., 474, it was held that a suit under the present statute to foreclose a mechanic’s lien was an equitable action, and of course the costs would be regulated by the rules applicable to that class of cases. In' this case, conforming to the present statute, all persons who had filed liens and all mortgagees were made parties defendant. So far as we are able to judge from the bill of exceptions, there was no question as to the liens of any of the parties except the plaintiff and Stout & Co. As to the right of the latter firm, to a lien for their claim, there seems to have been a sharp contest. In the taxation of costs, they taxed $14-for procuring and serving a copy of the referee’s findings, and also the notice to confirm the report. The plaintiff did not tax costs for a copy of the findings, and there was no taxation except for the copy procured by Stout & Co. The $14 was allowed them in the taxation, and, as we think, properly. The matter of costs in equitable actions is always within the discretion of the court, and it is idle to say there was any abuse of that discretion in allowing that item to Stout & Co. They and not the plaintiff performed the service or incurred the expense of the copy — 526 — served, and were entitled to charge for it. '’Whether each of the defendants conld have charged $14, had they served a copy of the findings, is a question we need not determine. Upon the whole record, we think the judgment was correct and must be affirmed. By the Court.— Judgment affirmed.