Messmer v. Block

Cassoday, C. J. This is an appeal from an order overruling a demurrer to a complaint alleging, in effect, that the plaintiffs were at the times stated architects; that as such, and between April 1, 1896, and September 11, 1896, they, at [665] the special instance and request of the defendant, rendered and performed wort, labor, and services in and about the drawing of plans and specifications for use in the erection and construction, and which actually were used in the erection and construction, of the building described, and the superintending of such construction, and that the same was situated on the real estate described and owned by the defendant; that the plaintiffs duly filed their petition for a lien February 16, 1897; that there was then due and owing to the plaintiffs from the defendant, by reason of the premises? over and above all payments made on account of the work done and materials furnished, the sum of $64.78, with interest thereon from November 30,1896; wherefore the ordinary judgment in such a case was demanded. The motion to dismiss the appeal on the sole ground that the notice does not state that the appeal is taken to this court is denied. It is conceded that this is the only court to-which the appeal could be taken; and hence it should be effectual for that purpose. R. S. 1878, sec. 3049; Steckmesser v. Graham, 10 Wis. 37; Johnson v. C., M. & St. P. R. Co. 43 Wis. 432. The defendant only objects to the complaint on the ground that it does not allege the essential facts constituting a contract whereby the defendant promised to pay to the plaintiffs for such services and materials,— much less the essential consideration for such agreement. The rendering of the services and the furnishing of the materials at the special instance and request of the defendant, and for his use and benefit, certainly constituted a good consideration for his promise to pay therefor. Silverthorn v. Wylie, 96 Wis. 69. The complaint did not allege an express promise, but it manifestly did an implied promise. True, it did not allege the-amount that the services rendered and the materials furnished were reasonably worth, but it did allege, in effect? that there was due and owing to the plaintiffs from the de [666] fendant tbe amount mentioned by reason of the facts stated, over and above all payments on account of the work done and materials furnished. Such facts, if they remain un-controverted, would seem to be sufficient to authorize a recovery from the defendant of the amount stated. Bue v. Ketchum, 51 Wis. 324; Edleman v. Kidd, 65 Wis. 22; Allen v. Patterson, 7 N. Y. 476; Farron v. Sherwood, 17 N. Y. 227. By the Court.— The order of the superior court of Milwaukee county is affirmed.