Thien v. Brand

Dodge, J. The principal controversy is over tbe question whether plaintiff performed his services under an understanding that he was to receive no compensation therefor other than his board and the commissions which he might receive from the sellers upon the machinery furnished for the mill. Also as to the value of those services. Upon these subjects the evidence is confused and, to say the most for the defendant, is conflicting. We are unable to say that there is any clear preponderance thereof adverse to the findings made by the trial court. Another controverted question, not put in issue by the pleadings, was whether the plaintiff gave credit for such services to a date beyond the time .when a mechanic’s lien could be asserted under statute, it being contended that by doing so he waived his lien. The question of law thus raised we shall not deem it necessary to investigate or decide, for we have reached the conclusion that the evidence, though very much in conflict, is so ambiguous and so susceptible of different constructions and inferences that the decision of the trial court that the extension of credit was only for a reasonable time, and not to a definite date later than the period fixed by law for commencing the lien action, is supported by the evidence, and certainly is not in antagonism to any clear preponderance thereof. Such credit would not per se waive the lien. Bailey v. Hull, 11 Wis. 289. One separate assignment of error is argued for that the court, upon motion, probably in the nature of demurrer ore terms, struck out a counterclaim for the amount of plaintiff’s board furnished him in the course of the work. We find it difficult to understand the theory upon which this was struck out. Defendant might not be able to recover a judgment therefor, yet, if proved, he would certainly be entitled to present the demand as a setoff. Schumacher v. Seeger, 65 Wis. 394, 27 N. W. 30; West Allis L. Co. v. Wiesenthal, 141 Wis. 460, 124 N. W. 498. However, we think no prejudicial effect can be ascribed to the error, if any, in striking [87] out the pleading, for defendant bimself testified to sucb an understanding that there would be no liability to pay for such board, but that at most the value thereof should go in compensation for his work. The finding as to the value of plaintiff's services in light of the evidence clearly refers to the value of those services over and above his living expenses while in attendance at the place where the mill was constructed. The defendant has therefore received the benefit of the value of that board by way of defense as4 fully as if he had been permitted to assert it in the form of either counterclaim or setoff. By the Gowrt. — Judgment affirmed.