Kendall Manufacturing Co. v. Rundle

47 N.W. 364, 78 Wis. 150, 1890 Wisc. LEXIS 304

• Court: Wisconsin Supreme Court
• Decided: November 25, 1890
• Status: Published

Opinion

Oassoday, J.

The plaintiff’s claim for materials furnished and services rendered by it attached to and became a lien upon Cooper’s interest in the premises as soon as such materials were placed in and became affixed to the building, and the services thereon rendered, which was on and before February 25, 1884. Sec. 3314, S. & E. Ann. Stats. The plaintiff took all the steps prescribed by the statutes for the continuance of that lien. Rundle, Spence c& Go. also acquired a lien for the boiler and materials furnished by them and their services in placing the same in and upon the premises during the same period. It appears, however, that they did not rely upon such hen as security, for they at first took Cooper’s notes therefor, and, upon their maturity and nonpayment, March 3, 1884, took a chattel mort gage for the amount then due from Cooper to themselves upon the boiler and fixtures which they had so furnished. May 2, 1884, Cooper abscondéd and left the premises in charge of no one. May 5,1884, Rundle, Spence c&. Co. went into possession, and ran the establishment until July 1,1884, when they removed the boiler and fixtures so furnished by them, and claimed the legal right to do so under their chattel mortgage. July 3, 1884, the plaintiff filed its petition for a lien upon Cooper’s interest in the premises, and on the same day the lessor re-entered for broken conditions in the lease.

We were at first strongly impressed with an equity in favor of Rundle, Spence db Go. to reclaim and retake the ■ooiler and fixtures they had put into the premises, and for which they had never received any pay. But after very carefully considering the- legal rights of the respective parties, we are unable to perceive any rule of law under which such removal of the boiler and fixtures from the premises by them can be justified. It is true the statute declares, in effect, that any person ordering or contracting for any machinery to be placed or connected to or with any building or premises in which such person has not am, interest sufficient for a Hen, as provided for in the statutes, to secure the payment therefor, “ shall have and retain a lien upon such machinery, and shall have the right to remove from such building or premises such machinery in case there shall be default in the payment of such machinery when due, learning such building or premises in as good condition as they were before such machinery was placed in or on the same.” Sec. 8314, S. & B. Ann. Stats. But Rundle, Spence & Go. cannot justify such removal under this provision, for the obvious reason that Cooper had a sufficient interest in the building and premises to authorize a lien thereon, as prescribed in the statutes. Sec. 2025, R. S.; Jessup v. Stone, 13 Wis. 466. This is virtually conceded by counsel for the defendants. Besides, it is apparent from the evidence and the findings that such removal was not made, and could not have been made, in such a way1 as to leave the building or premises in as good condition as they were before such machinery was placed therein. Moreover, the statute declares, in effect, that no lien given thereby shall exist, and no action to enforce the same shall be maintained, unless, within the time therein prescribed, a claim for such lien shall be filed as therein provided, etc. Sec. 3318, S. & B. Arm. Stats.; Wilson v. Rudd, 70 Wis. 98. There is no pretense that Bundle, Spence & Co. ever filed any claim, gave any notice, or commenced any action to preserve and perpetuate the lien which they manifestly at first acquired by putting the boiler and fixtures into and upon the premises as found by the court.

The result is that Bundle, Spenee & Go. must be regarded, in law, as having waived and abandoned any and all claim to any lien under or by virtue of the statutes. Whatever right or claim they had to such boiler and fixures, therefore, was acquired by and based entirely upon the chattel mortgage taken by them March 3, 1884. Since the boiler and fixtures became so incorporated in and attached to the building and premises as to become part of the realty, as in effect found by the trial court, it is very questionable whether the chattel mortgage ever became operative at all. Frankland v. Moulton, 5 Wis. 1; Smith v. Waggoner, 50 Wis. 155; Taylor v. Collins, 51 Wis. 123.

But, however that may be, since the plaintiff’s claim attached to and became a lien upon all of Cooper’s interest in the premises and the fixtures therein as early as February 25, 1884, and since the statute expressly declares that “such lien shall he prior to any other lien which originates subsequent to the commencement of the construction, repairs, ... or work aforesaid of or upon such . . . building, machinery, ... or erection thereon,” etc. (sec. 3314, S. & B. Ann. Stats.), it necessarily follows that such lien of the plaintiff could not be defeated by the chattel mortgage given by Cooper March 3, 1884. The subsequent absconding of Cooper, the taking possession by Rim-die, Spence & Go., and operating the establishment, and paying the rent which accrued during the time, the removal of the boiler and fixtures, and the subsequent re-entry by the lessor for broken conditions in the lease, did not defeat the plaintiff’s lien, although they may have impaired its value. Nor did they in any way enlarge the assumed rights of Bundle, ¡Spence ds Oo. under them chattel mortgage.

By the Gourt.— The judgment of the circuit court is affirmed.