Charles Baumbach Co. v. Laube

The .following opinion was filed February 8, 1898: Marshall, J. By sec. 3315, R. S. 1878, as amended by ch. 321, Laws of 1891, a subcontractor is entitled to a lien upon condition that within sixty days after the performance of the work or labor, or furnishing of the materials, for which the lien is claimed, he gives notice in writing, to the owner of the building, or his agent, of the property to be affected by such lien, setting forth the facts required, if such owner or agent can be found in the county; and otherwise that he files such notice in the office of the clerk of the circuit court for such county. The remedy thus given being wholly statutory, strict performance of all the conditions precedent,, to entitle the subcontractor to it, is required. That must be alleged in the complaint, and, unless admitted by the answer or otherwise established by the evidence, the lien fails. No citation of authority or extensive discussion of a rule so elementary seems to be necessary. Thompson v. Milwaukee, 69 Wis. 492; Dewey v. Fifield, 2 Wis. 73. It may be stated as a universal rule that where a right or remedy is given by statute only upon the performance of certain conditions, [175] performance of such conditions must be alleged in the complaint and established on the trial, unless admitted by the-pleadings. 4 Ency. of Pl. & Pr. 655, and cases cited; Plum v. Fond du Lac, 51 Wis. 898. It is not doubted but that in case of a variance between the- allegations of the complaint, and the proof, where the evidence has been received without objection and shows that all the facts exist requisite to the enforcement of the remedy, the defect may be cured by amendment on proper terms on the trial, or disregarded on appeal if raised in the appellate court for the first time; but where there is a failure to establish performance of the condition alleged, evidence cannot be properly received against objection to show the performance of some other condition-which will save the remedy, or such evidence considered if the same be received against objection, and proper exceptions taken. The proper course obviously is, in such circumstances, to amend the complaint in accordance with the facts. Plaintiff not only neglected but refused to do that; hence, as wre view the statute, the case stands without proof of the-performance of the condition, without which the action against the appellant cannot be maintained. The contention that the statute provides three methods of serving notice in writing by the subcontractor: Eirst, by personal service on the owner if found in the county; second, by service of the notice upon the agent of the property to be affected by the lien, if to be found in the county; third? by filing the notice in the office of the clerk of the circuit court of the county,— can only be maintained, as we view it, by reading into the statute language that is not there and resorting to judicial construction where the language is plain and its meaning unmistakable. That we cannot properly do. The language of the statute is: “ If, within sixty days after performing such work or labor, or furnishing such materials, he shall give notice in writing to the owner or his agent, of the property, . . if to be found in the county, [176] and if said owner or agent cannot be found in sucb county, by filing a notice in writing, in the office of the clerk of the circuit court of said county. . . The words, “ by filing a notice,” etc., relate, obviously, to the words “ give notice in writing,” and not to the words “to the owner.” Therefore, clearly, such filing is not sufficient, except on condition that notice in writing cannot be given to the owner or agent. It is to be regretted that the error in the construction of the statute makes a reversal of a judgment necessary, where it is plain that the facts exist, entitling plaintiff to his lien and judgment; but well-settled rules of pleading cannot be ignored to avoid the consequences of wrong statutory construction. It is contended by the appellant that the court erred in refusing to submit the issues on 'the evidence to the jury. Actions to enforce mechanics’ or materialmen’s liens under ch. 143, E. S. 1878, as amended, are suits in equity, with the added feature in sec. 3323, E. S. 1878, of the right of either party, on demand therefor, to have any issue of fact submitted to a jury, whose verdict thereon shall be conclusive. Willer v. Bergenthal, 50 Wis. 474. Such section plainly contemplates that the demand therein mentioned shall be made at the commencement of the trial, and that it shall specify, specifically, the issue or issues which the party desires to have submitted to the jury, so that such issue or issues may be covered by special questions to be answered by the jury in the form of a special verdict. If no such demand be made, the statutory right is thereby waived. Nevertheless, the court may, of its own motion, submit questions of fact to a jury, whose verdict in that case is advisory only. Bartlett v. Clough, 94 Wis. 196. No demand was made here by the appellant, before the commencement of the trial, for the submission of any particular issue or issues to the jury, nor was any demand whatever, at that time, made for a jury trial. The court impaneled a jury of its own motion. It [177] must be deemed to have been done, not under sec. 8323, E. S. 1878, but under sec. 2813, E. S. 1878, which expressly authorizes the court, in an equity case, to take the advice of ■a jury on questions of fact. When a jury is impaneled under the latter section, the court may, at any stage of the proceedings, withdraw the case entirely from the jury, or may, ■after they have rendered their verdict, set it aside and disregard it altogether. Carrolls Will, 50 Wis. 437; Bartlett v. Clough, supra. Erom what has preceded it will be seen that the demand for the submission of issues to the jury, made at the close of the evidence, came too late. The right had been waived. The withdrawal of the case from the jury, by the court, even if it be true that the evidence was conflicting, was clearly a matter within the discretion of the court, and not subject to review on this appeal. Numerous exceptions were filed to the findings of fact made by the court, all of which have received consideration without discovering any ground for disturbing any of such findings, under the rule that findings of fact by the trial court must prevail on appeal unless shown to be contrary to the clear preponderance of the evidence. It follows that the judgment of the circuit court must be reversed and the cause remanded with directions to dismiss the complaint as to the appellant and his property, and to render judgment in his favor for costs to be taxed, unless, within thirty days after notice in writing to the plaintiff’s attorneys, of the filing of the remittitur in the office of the clerk of the circuit court for Green county, it obtains leave of the trial court, on such terms as it may deem equitable, to amend the complaint so as to allege performance of the •condition precedent in respect to the filing of the notice, in writing, of the subcontractor’s claim for a lien, in the office •of the clerk of the circuit court for Green county, and the •existence of the condition rendering such filing proper under [178] the statutes governing the subject. In case such amendment is made, the trial court is directed to render judgment in accordance with the findings and conclusions of the court. Costs in this court in favor of the appellant are limited to clerk’s fees, attorney’s fees, and $25 for printing. By the Oowt.— So ordered. BaedeeN, J., took no part. A motion for a rehearing ivas denied April 12, 1898.