Tingley v. Richter

Siebecker, • J. An examination of the record discloses that no exceptions were taken to the findings of fact made by the trial court. The findings must therefore be treated as verities in the case. Statkawicz v. Laguna, 155 Wis. 304, 143 N. W. 677, 144 N. W. 1133. The pleadings and findings in the case are sufficient to sustain the judgment under the statutes providing for subcontractors’ liens for materials furnished and used in the erection of the building in question, if the trial court properly construed the alleged writings which appellant claims [19] are releases of respondents’ liens as subcontractors. The alleged release by plaintiff contains the following provision: “The said undersigned subcontractor hereby waives his lien upon the above said premises for the said amount [$250], but reserves his rights under the contract for the balance of the amount due under his contract.” The terms of this provision clearly released the lien only Jo the extent of the sum paid by.appellant when the paper was signed, namely, $250, and the latter part of the clause in express terms declares that a right of lien on the premises shall remain for the unpaid balance. The trial court correctly held that this alleged release of lien did not constitute a release of the right of lien for the amount still due plaintiff as subcontractor. The court finds that the owner, Richter, after'the construction of the apartment building had been commenced, obtained a loan of $20,000 and gave a mortgage' to secure the payment of this loan on the premises on which the apartment building was in process of construction. It appears that the note given by Richter to the Building Supply Company for $1,500, which when paid was to apply on the company’s claim for material furnished by it, was only payable out of funds Richter obtained on the mortgage. The transaction embraced in the alleged release, which was executed by the Supply Company on the day the above note was given, was manifestly intended by the parties to accomplish the object of reducing the builder’s lien to the amount advanced out of the mortgage funds, and such payment was to inure to the benefit of the mortgage by enhancing the mortgage security as a subsequent mortgage lien on the premises. Viewing the alleged written release of the Supply Company made May 25, 1916, under these surrounding facts, it is manifest that the trial court is amply sustained in its conclusion that this release was intended by the parties to release the Supply Company’s subcontractor’s lien for no more than the amount Richter would pay on the sixty-day [20] note given by him to the company, and the trial court properly held that the Supply Company is entitled to enforce a lien for the balance due on its claim for material furnished. The contention that the subcontractor, Rehm, is not entitled to judgment in his favor as awarded must be denied because the findings of fact on his claim are that the defects in the window frames furnished by claimant were remedied by' Richter, the builder, before they were used by him in the building, and the cost thereof deducted from the price. The effect of this finding is that the frames, after repairing their defects, were accepted by Richter. The court also found as a fact that Rehm, through misrepresentation by the builder and his attorney, signed the alleged release believing it did not waive his right tó a subcontractor’s lien. Under this state of the record these findings must stand. We find no reversible error in the record. By the Court. — The judgment appealed from is affirmed.