Chandler Lumber Co. v. Fehlau

Tbe following opinion was filed October 20, 1908: KeewiN, J. Tbe only question for consideration upon this appeal is tbe sufficiency of tbe notice of lien involved, which is as follows: “Notice is hereby given to Gustav Fehlau, tbe owner of tbe property to be affected by tbe lien herein mentioned, that tbe undersigned, the Chandler Lumber Company, a corporation organized and existing under tbe laws of the state of Illinois, with its principal place of business in the city of Chicago, Illinois, subcontractor of H. Scbutte, principal contractor, for furnishing tbe materials hereinafter mentioned, claim tbe lien given by chapter 143 of the Revised Statutes of Wisconsin, and tbe acts amendatory thereof,. [206] upon tbe premises and lands hereinafter particularly described and upon tbe dwelling bouse thereon situate. ' That tbe undersigned was employed by said II. Schutte, contractor, to furnish tbe materials, hereafter particularly stated, upon the property hereinafter described, and the dwelling house situated thereon. That the undersigned-has furnished such materials, pursuant to such employment, to the amount and valúe of eleven hundred ($1,100) dollars, upon the said property and dwelling house situated thereon. That the following is a particular statement of said materials furnished by the undersigned, pursuant to such employment, to the value of: “Materials Furnished. — Lumber and mill work to the value of eleven hundred dollars. “The property to be affected by said lien is described as follows, to wit: lot seven (I) in block ten (10) in Hudson Park in the- town of Blooming Grove, according to the recorded plat thereof, all in the county of Dane and state of Wisconsin.” The appellant contends that the notice is deficient and not in substantial compliance with the- statute, for the reasons (1) that it does not contain a sufficient statement of the material alleged to have been furnished; and (2) that it fails to state the amount due plaintiff from Schutte, the principal contractor. Sec. 3315, Stats. (1898), requires the person furnishing the material to the contractor to give notice in writing to the owner, setting forth, among other things, “a statement of the labor performed or the materials furnished, the amount due therefor from such principal contractor.” This court has held .that compliance- with this section of the statute is a condition precedent to the fight of lien by a subcontractor, and that it is essential to the notice provided for that it “contain all the features indicated by such section.” Laev L. Co. v. Auer, 123 Wis. 178, 101 N. W. 425 ; Security Nat. Bank v. St. Croix P. Co. 117 Wis. 211, 94 N. W. 74. It is insisted by appellant that the “statement” mentioned in the statute means a reasonable bill of items, and a long line [207] of authorities is cited in support of this contention. Many of these cases are based upon statutes quite different from our own, and, while some of them tend to support appellant’s ■contention, others may be found, some of which are cited by respondent, which give a more liberal construction to such statutes. The object of the notice required by our statute to be given by the subcontractor is to enable the owner to protect himself by withholding the amount claimed from the principal contractor. Mark Paine L. Co. v. Douglas Co. Imp. Co. 94 Wis. 322, 324, 68 N. W. 1013. A general statement of the material furnished has been held sufficient. Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136; Brooks v. Railway Co. 101 U. S. 443. While we think the statement of materials furnished is meager and not to be commended, we cannot say that it is not a compliance with the statute requiring a statement of the materials furnished. Upon the second point of objection to the notice, however, ■we have had much trouble. The statute in express terms requires the notice to state the amount due. There is no express statement in the notice that any amount is due. In Laev L. Co. v. Auer, supra, this court seems to have recognized the necessity of stating in the notice the amount due. The court said: “If it sets forth the facts that he was employed to furnish, and that he did furnish, material as specified for the erection and construction of the building, with the amount due from the principal contractor, the terms and conditions of the statute are fulfilled. The purposes of this statute are twofold: Eirst, to secure payment to persons who furnish material or perform labor upon the structures therein mentioned; and second, to apprise the owner that a claim therefor is made for ■the amount due for such labor or material.” And in Security Nat. Bank v. St. Croix P. Co., supra, it is said that “unless a notice containing the statutory re■•quirements was served . . . the lien was lost.” The clause [208] in the notice “that the undersigned has furnished such materials, pursuant to such employment, to the amount and value of eleven hundred dollars” cannot be said to satisfy the call of the statute, which in plain and unambiguous terms requires the amount due to be stated. This requirement cannot be supplied by inference. Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055. It follows, therefore,■ that the-notice .was not in compliance with the statute, hence the-order appealed from must be reversed. By the Gowrt. — The order appealed from is reversed, and the action remanded for further proceedings according to* law. A motion for a rehearing was denied December 15, 1908..