Reindl v. Heath

Dodoe, J. By express statute (sec. 2647, Stats. 1898) it is provided; “The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both, where they arise out of (1) the same transaction, or transactions con [572] nected with the same subject of action; or (2) contract, express or implied.” It seems entirely obvious that the' two causes of action against the defendants set forth in this complaint both arise out of contract; indeed, out Of the same contract. The first • is a cause of action to recover upon defendants’ breach of the provision of that contract to pay certain money for services rendered. The second cause of action is to recover damages for the same defendants’ breach of another provision of that contract to supply a certain quantity of timber to be sawed. Thus stated, there seems to be hardly room for argument, but the fact is pressed upon our attention that accompanying the allegation constituting the first cause of action are allegations of other facts sufficient to entitle the plaintiffs to a lien upon the lumber sawed and still in the ownership of the defendants, and a prayer for such relief, in compliance with sec. 3331, Stats. 1898. This, it is contended, transforms the first cause of action from one arising out of contract into sorfiething else, and this view is supported by a quotation from Collins v. Cowan, 52 Wis. 634, 637, where it is said: “ The action to enforce the lien is sui generis. It bears some analogy to a libel in rem and proceedings thereon in admiralty.” Also from Shafer v. Hogue, 70 Wis. 392, 395: “ The [lien] proceeding under our statute serves a twofold purpose: chiefly and primarily to enforce a lien upon logs and timber for labor done upon them, and also to obtain a personal judgment for the amount due the plaintiff.” Those remarks vrere addressed in both cases to the. proceeding to enforce liens upon lumber, the property of a person other than the employer of the labor, and who, therefore, was not liable upon contract for the debt; and they are fully justified in thát point of view. That distinction receives significance in Munger v. Lenroot, 32 Wis. 541, 545, where it is said: “ So far as the general owner is concerned, if he does not himself employ the laborer, the proceeding is strictly in rem.” [573] A suit against tbe employer wbicb also seeks to enforce a lien upon lumber still in his ownership has a different aspect. There the recovery of the money which the defendant has contracted and failed to pay is obviously the chief and primary purpose of the suit, and the lien statute but serves to supply an additional remedy or means of enforcing the payment of such indebtedness when adjudged. The action against the employer to recover the contract debt is, of course, an action arising out of contract, and as to such defendant it is not transformed in its character by the annexation thereto of allegations and prayer for the ancillary remedy by way of lien. This was substantially decided in Lackner v. Turnbull, 7 Wis. 105, where it was held that a simple action for the recovery of money for work, labor, and materials was not changed in character by an amendment praying a mechanic’s lien and alleging the additional facts necessar}7' to support such demand. Had these plaintiffs originally sued for the two kinds of recovery now sought, without seeking a lien for the security of either, the contract character of the two causes of action would be too obvious for debate. But that situation, according to the case last cited, would not be changed By an amendment bringing in the application for a lien as an adjunct to one of the causes of action; nor is it changed by addition of such averments and prayer in an original complaint. In other words, mis-joinder would not be and is not thereby brought about. The contract character of the first cause of action quoad the contract debtor himself is confirmed by several cases in this court holding that the action is one on contract and at law. Marsh v. Fraser, 27 Wis. 596; De Morris v. Wilbur L. Co. 98 Wis. 465. No difficulty in formulating a proper judgment can arise from the joinder of these two causes of action. It is entirely competent for the court to adjudge a total money liability, and to adjudge and direct the enforcement of lien for only [574] a portion thereof against certain property. We bold, therefore, that the joinder of the two causes of action in the complaint before us is authorized upon the second ground stated in the statute above quoted. Such conclusion relieves us from consideration of the arguments on both sides as to whether it is also authorized upon the first ground. By the Oourt.— The order overruling the demurrer is affirmed.