W. H. Pipkorn Co. v. Tratnik

The following opinions were filed April 13, 1915: Barnes, J. It is not improbable that the owner o'f the premises involved and the subcontractors are innocent of any wrong. If so, one or the other must suffer for the default -of the principal contractor, and the question is, which ? The owner could have protected himself in the first instance by dealing with a responsible party or else by requiring an ade-cúate bond. But there were also means open to the subcontractors to protect themselves. The relation between owner, principal contractor, and subcontractor has been pretty well settled by this court. The principal contractor is the agent of the owner to purchase the materials required by the principal contract. The owner consents that the principal contractor may do what is necessary to carry out the principal contract and makes his property liable therefor in accordance with the statute, which becomes a part of the contract. Siebrecht v. Hogan, 99 Wis. 437, 441, 75 N. W. 71; Taylor v. Dall L. & Z. Co. 131 Wis. 348, 111 N. W. 490. The' materials here furnished by the subcontractors con [94] sisted of crushed stone, lumber for falsework in basement walls, gravel, cement, and flue linings for chimneys, and elbows- and galvanized iron. There is no claim that the material was-not such as the principal contract called for and as the principal contractor was required to furnish under his contract. The court expressly found that the materials furnished by the subcontractors were of a merchantable quality and in accordance with the contract entered into between the owner and the principal contractor. The court further found that, the necessity for tearing out the walls was due to improper method of construction and not because of the material used, being defective. As far as the rights of the subcontractors are concerned, it; can make no difference whether the owner himself contracted for the materials or his duly authorized agent did so. The owner is responsible for the authorized acts of his agent, the-principal contractor, to the same extent that he would be liable had he done the acts himself. The real question, therefore, is: Would the subcontractors, have a lien if the material had been purchased by the owner and had been wrought into the walls by the servants or contractors of the owner, but by reason of poor workmanship the-walls had to be removed and the material destroyed? This-court has held that, where a principal contractor delivers material on the ground to be used in the erection of a building, he is entitled to a lien although the owner sells the material and it is used elsewhere. Esslinger v. Huebner, 22 Wis. 632. It is so ruled in Fitzgerald v. Walsh, 107 Wis. 92, 98, 82 N. W. 717, and in Spruhen v. Stout, 52 Wis. 517, 9 N. W. 277, and these cases are approved in Francis & N. F. Co. v. King Knob C. Co. 142 Wis. 619, 622, 126 N. W. 39. The destruction of the material delivered was no more complete in the instant case than it was in Halsey v. Waukesha Springs S. Co. 125 Wis. 311, 104 N. W. 94, where the building was. destroyed by fire and where it was held that the right of lien [95] existed for the burned material. As tbe court tliere points out, a mechanic’s lien may fasten on land before any building 'Or structure exists thereon, and, if so, “it may persist after any such structure disappears.” In Fitzgerald v. Walsh, supra, an architect was allowed a lien on the land on which a building was to be erected, although the construction was abandoned after the excavation was made. It has also been held that the fact that the principal contractor has not complied with the conditions of his contract so as to enable him to enforce a lien on the building will not militate against the subcontractor enforcing such a lien if the subject of the subcontractor’s lien might in any event be lien-.able in favor of the principal contractor. Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490. There is no conflict between the cases cited and Houlahan v. Clark, 110 Wis. 43, 85 N. W. 676. There the principal contractor was held not to be the agent of the owner because he did not build the kind of a structure which his contract called for nor at the place the contract called for. The contractor was acting without the scope of his authority in doing what he did, and his acts were therefore held not to be binding on his principal. Here the contractor was acting strictly within his authority in purchasing the materials which were delivered by the lien claimants. His default occurred in improperly using such materials. It seems clear that the materialmen are no more affected by the default of the owner’s agent in this regard than they would be had the owner himself made the improper use of the materials. It is clear that had the owner himself purchased the material in question to be used in the basement walls, and it was so used by the contractor, a right of lien would attach to the land, although the construction, because of poor workmanship, became worthless. If so, we see no escape from the proposition that the same result would follow where the purchase of the [96] material was made by an agent acting witbin tbe scope of his. authority in purchasing the material. Mary Tratnik was evidently made a party defendant for-the purpose of barring her inchoate right of dower. It was neither proven nor found that she knew the improvement in question was being m'ade or that she consented thereto. We-do not think the mechanic’s lien statute was intended to reach an inchoate dower right and cut it off as a matter of course-whenever the interest of the husband owner was cut off. If Joseph Tratnik should die before his wife, the judgment would bar her dower right in the property, provided it was sold to pay the lien claims. In this respect it is erroneous. Phillips, Mech. Liens (3d ed.) sec. 195. By the Gourt. — Judgment affirmed as to Joseph Tratnik and reversed as to Mary Tratnik, and cause remanded for-further proceedings according to law.