Moritz v. Sands Lumber Co.

Kebwin, J. It is contended by appellants that the Sands Lumber Company acquired no lien for any of the lumber used in shoring, because it did not become a part of the structure, and further that the findings to the effect that seventy-five per cent, of the lumber was consumed in the construction of the building, and that twenty-five per cent, was depreciated in value as specified in the finding, are not supported by the evidence. A careful examination of the evi52 deuce convinces that the findings are well supported by the evidence. The question whether the Sands Lumber Company -was entitled to a lien upon the established facts is a more delicate question. In a case recently decided by this court, Barker & Stewart L. Co. v. Marathon P. M. Co. 146 Wis. 12, 130 N. W. 866, it was held that where lumber was furnished and used in a cofferdam, which dam was no part of the building, but was afterwards torn or blown out and the lumber thereby became destroyed, or practically so, the ma-terialman furnishing the lumber was entitled to a lien upon the structure though no part of the lumber became a part of it. It appeared that the cofferdam was a structure built in order to facilitate the construction of a concrete dam on the premises to furnish water power to operate the mill in process of construction on the premises. The cofferdam was a temporary affair and became useless after construction of the permanent or concrete dam. While the right to a mechanic’s lien must be found in the statute, this court has held that the statute must be liberally construed with a view of carrying out its intention and remedial purpose. The statute gives a lien for materials furnished “for or in or about” the erection of the structure, and the question here is whether the shoring used in the reinforced concrete building was furnished for, in, or about the building. There is no question here but that the material was furnished and delivered to be used in the building and was in fact used for shoring, but did not remain in the building after the concrete had become set, and twenty-five per cent, of it was removed and used for other purposes, though considerably depreciated in value by use in appellants’ building. Seventy-five ‘per cent., as the court found, was practically consumed or destroyed by use. This case is very similar in principle to Barker & Stewart L. Co. v. Marathon P. M. Co. 146 Wis. 12, 130 N. W. 866. There the lumber did not remain in the structure, but was [53] practically destroyed in tlie nse. Here the lumber was actually used in the construction by supporting the concrete until it hardened and was self-supporting, and then was removed. It was thus used several times in the construction, and after the building was finished had become so damaged that seventy-five por cent, of it was practically destroyed and of no value except for kindling wood, as the evidence shows and the court found. It has been held that mechanics’ liens may be allowed for the value of explosives used in preparing the ground for the building of the structure, upon the principle that where the material is used directly upon the structure, instrumental in producing the final result, and actually consumed in use, it may be said to form a part of the structure. See cases cited in Barker & Stewart L. Co. v. Marathon P. M. Co. 146 Wis. 12 (130 N. W. 866), at page 22. The logic of these decisions is, as said by this court in the Barker Case, that the material is consumed necessarily in the process of constructing the building and that its life has gone into the fabric of the structure. This necessarily is peculiarly applicable to the instant case. The shoring had physical contact with the building in its construction. It added to the value of the completed structure, and its life and substance had in effect gone into the structure to the extent, at least, that the material was consumed. We think it clear, therefore, that the Sands Lumber Company, furnisher of the material, had a lien for the seventy-five per cent, of the lumber consumed. Nor do we see any solid reason for denying a lien for the amount of depreciation of the remaining twenty-five per cent, of the lumber used for shoring. This lumber was likewise used' in. the construction of the building, but in such use was not wholly consumed, but was consumed or destroyed to the extent found by the court below, and for which amount of destruction or consumption a lien was awarded. Thus the whole amount of consumption of the lumber used in the con54 struetion of the building was held lienable. This ruling is, we. think, in harmony with Barker & Stewart L. Co. v. Marathon P. M. Co., supra, and late cases in other jurisdictions. Avery & Sons v. Woodruff & Cahill, 144 Ky. 227, 137 S. W. 1088; Darlington L. Co. v. Westlake C. Co. 161 Mo. App. 723, 141 S. W. 931; Chicago L. Co. v. Douglas, 89 Kan. 308, 131 Pac. 563. In Avery & Sons v. Woodruff & Cahill, supra, it was held that the materialman had a lien for lumber furnished for shoring in the construction of a concrete building where the lumber was in greater part consumed in the building, and the case of United States F. & G. Co. v. Probst, 30 Ky. Law Rep. 63, is distinguished. Darlington L. Co. v. Westlake C. Co. 161 Mo. App. 723, 141 S. W. 931, holds that where the material is consumed in whole or in part the claim is lienable. This was a case of lien for shoring used in the construction of a concrete building. True, there are cases holding that no lien exists for lumber used to make molds for concrete work; as, for example, Rittenhouse & Embree Co. v. F. E. Brown & Co. 254 Ill. 549, 98 N. E. 971. But it will be seen the lumber was not destroyed or consumed in that case, but was taken away and used again. In the case of Kennedy v. Comm. 182 Mass. 480, 65 N. E. 828, the lumber was not consumed, but was moved away and used on other jobs. It is further insisted by appellants that since the lumber was not totally destroyed no lien can be had for any part, because the statute does not cover a case of partial destruction or consumption, and that the lienable and nonlienable portions of the lumber cannot be distinguished. FTo reason is perceived why a lien cannot be had to the extent that the lumber has been consumed, although a part was saved. The case of Darlington L. Co. v. Westlake C. Co., supra, is in point [55] upon this proposition. There the lumber was consumed in part only, and the court said: “Where certain material is provided for by the contract in the erection of a structure and is furnished and used accordingly, and is either in whole or in part consumed in its use> the materialman is entitled to a lien for the material thus consumed in the erection of the structure, to the extent of the consumption of its reasonable value, regardless of the fact whether or not such material formed a permanent part of the structure when completed. Consumption of value means the depreciation in the market value of the material by the use provided for by the contract.” There is no question here of the inseparable, indistinguishable lienable and nonlienable articles. The case does not come within the decisions cited by the appellants, namely, Allen v.Elwert, 29 Oreg. 428, 44 Pac. 823, 48 Pac. 54, and Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36, where from the contract and articles delivered the value of the lienable and nonlienable articles could not be ascertained. In the Binzel Gase the lien claim represented a stipulated lump contract price, and the articles consisted of fixtures which were lienable and others which were nonlienable. So it will be seen that that case, as well as Allen v. JElwert, supra, is clearly distinguishable from the instant case. In the case at bar all the lumber was lienable, therefore the materialman was entitled to a lien for the value of such part of the lumber as was consumed. Horn v. Clark H. Co. 54 Colo. 522, 131 Pac. 405. We are of opinion that the judgment of the court below is right and should be affirmed. By the CouH. — The judgment is affirmed.