Witt v. Merz

BabNes, J. This action is brought by a subcontractor to foreclose a claim for a mechanic’s lien. Tbe case was referred, and tbe findings of fact and conclusions of law made and found by tbe referee were confirmed by tbe court. This •appeal is taken to review tbe correctness of two of tbe findings of fact. Tbe referee found that tbe last work performed by tbe plaint iff upon the building which be constructed was done on November 13, 1905. Tbe defendant Komorowski, tbe owner of tbe building, offered evidence to show that tbe last date upon which work was performed was November 4, 1905. Tbe notice provided for by sec. 3315, Stats. (1898), was served on January 9, 1906. It is manifest that if the last work was performed as early as November 4th tbe plaintiff bad lost bis right to a lien by reason of tbe fact that more-than sixty days bad elapsed after tbe work was done and before tbe required notice was served upon tbe owner. Tbe testimony seems to preponderate in favor of tbe contention of tbe appellant upon tbe question. There is, however, considerable evidence in tbe record to support tbe finding of tbe referee, and we do not think tbe testimony so clearly preponderates against bis finding as to warrant this court in setting it aside. Tbe referee bad tbe advantage of seeing the witnesses, and should be in a better position to pass upon their ■credibility than this court is. Certain payments were made by the principal contractor to tbe plaintiff while tbe latter was engaged in building tbe bouse of tbe defendant Komorowski, and it is urged that it was error not to apply such payments, or at least a portion [31] ■of them, on the indebtedness due from the principal contractor to the subcontractor on account of the Komorowski house. The evidence to show that these payments were made ■on account of other jobs which the plaintiff was performing for the principal contractor is sufficient to sustain the finding ■of the referee. By the Gourt. — Judgment affirmed.