Dallman v. Clasen

92 N.W. 565, 116 Wis. 113, 1902 Wisc. LEXIS 295

• Court: Wisconsin Supreme Court
• Decided: December 16, 1902
• Status: Published

Opinion

WiNsnow, J.

Our mechanic’s lien statute gives the right •of lien to principal contractors, subcontractors, and the employees of either, but not to a subcontractor of a subcontractor. Stats. 1898, secs. 3314, 3315. In the present case the lien claimants and respondents were apparently subcontractors of a subcontractor, and Fence not entitled to liens, and tbe simple question to be determined is whether any facts appear in the case which in equity entitle them to be treated as subcontractors. The referee found as facts that the contract by which Mindeman sublet the entire work to Lavies was made by Mindeman and Lavies with the intent of obtaining from the lien claimants their labor- and materials without payment, and depriving them of their rights of lien; that Glasen, the owner, saw and knew that Lavies was erecting the building, instead of Mindeman; and, as a conclusion of law, that Lavies became, in equity and essentially, the principal contractor for the building, instead of Mindeman, and that the lien claimants thus became subcontractors, and entitled to liens. It may well be that, had there been a conspiracy formed, to which Glasen, Mindeman, and Lavies were parties, that the building contract was to be nominally let to Mindeman, and that Lavies was then immediately to take the contract for the purpose of defeating liens of material-men by thus making them subcontractors of a subcontractor, a court of equity would rightfully hold that Lavies was in fact the principal contractor, and hence that the lien claimants were subcontractors, although this proposition is not decided. Conceding it to be correct, however, it is clear that the participation of Glasen, the owner, in the conspiracy, must be absolutely essential. He cannot be prejudiced, nor his land saddled with a lien, by the acts of third parties in which he did not join. This seems fundamental and elementary. It is not found that Glasen had any knowledge of or participation in the arrangements between Mindeman and Lavies, nor is there any evidence of such knowledge or participation. He knew that Lavies was in fact erecting the building, but this is entirely consistent with good faith on the part of Glasen. No finding of fraud or conspiracy can be based on this fact alone. So far, therefore, as Glasen is concerned, there is absolutely no evidence tending to show that the lien claimants are entitled to be considered as anything more than subcontractors of a subcontractor.

As to the personal judgment against Mindeman, it must be based upon the supposed fraudulent character of the subcontract between Mindeman and Lavies, if upon anything. Eeally the only proof that this was not a bona fide contract was the fact that Lavies made his bid with but about an hour’s deliberation. It was, however, a very small house, as appears from the price, and hence one upon which a competent builder might mate estimates in a very brief time. Fraud should be clearly and satisfactorily proven. We have been unable to find any evidence which would justify the conclusion of fraud in this contract.

By the Court. — Judgment reversed as to the appealing defendants, and action remanded, with directions to dismiss the complaint as to such defendants.