Usiak v. Kubiak

225 N.W. 168, 198 Wis. 600, 1929 Wisc. LEXIS 183

• Court: Wisconsin Supreme Court
• Decided: April 30, 1929
• Status: Published

Opinions

Eschweiler, J.

This court has uniformly held that the statutes giving liens of this nature are highly favored. Carl Miller L. Co. v. Meyer, 183 Wis. 360, 367, 196 N. W. 840.

The material part of the section of the statute here involved is as follows:

“Section 289.06 (1). No lien hereby given shall exist and no action to enforce the same shall be maintained unless . . . within six months . . . from the date of the last charge for performing such work and labor or of the furnishing of such materials a claim for such lien shall be filed as,” etc.

Appellant contends that under this statute materials furnished as was the one item of September’ 29, 1926, referred to above and paid for in cash at the time, are not within the statute. Also that the word "charge” as there found must relate to an item for which credit has been'extended in order that it may be considered within the purport of the statute.

The- earlier statutory provision, sec. 4, ch. 153, R. S. 1858,-provided: “No such debt for work and material shall remain: a lien upon . . . longer than one year from the time of furnishing of materials or the performance of the labor,:r unless a- petition or claim for the same be filed . . . within the said year.” There, was added to this sec. 4 by ch. 113; Laws of 1859, the following: “such petition or claim'.shall be filed . . . within ninety days from the date of the last charge for work, and labor performed, or materials furnished.”

In a case decided in 1861, Fowler v. Bailley, 14 Wis. 125, passing upon a state of facts existing prior to the said amendment .in 1859, it was held that the petitioner was in time if he filed within one year from the time of the last act done in execution of the contract (p. 131). We cannot believe that the words added by the amendment of 1859, supra, containing the word “charge,” upon which so much reliance is placed by appellants, was intended to materially alter or affect the rights of lien claimants other than to limit the time withiñ which they must elect to proceed for their remedy. We feel that since that amendment as well as before, the essence of the statute is to consider performance rather than the mere question of bookkeeping entries, and that the payment of one only of many items all furnished under one building arrangement, as in this case, should not destroy the right to obtain the benefit of such a statutory remedy. The word-“charge” does not necessarily mean, and we shall no.t here construe it to mean, a transaction involving or a bookkeeping entry belonging to but one side of an account. The primary use of the word is undoubtedly one meaning the creation of or recognition of an obligation (Merchants Exch. Nat. Bank v. Commercial W. Co. 49 N. Y. 635, 639), as illustrated when we submit to a charge for service by a raib road though we may be required to discharge the obligation thereunder by forthwith payment.

We prefer to rest .this case upon the conclusion that the word “charge” as found in the statute is not intended to narrow the rights of the lien claimants, of to limit it to its meaning in bookkeeping parlance, or the; still more limited one asserted by appellants, viz. that it must be a charge unaccompanied by a corresponding contemporaneous discharge by payment. „ •}.

No question is being raised in this ca$e.but that the articles furnished in September were pursuant to the original arrangement and were actually used in the building.

It is also manifest that there was no ¡break in the continuity of performance under this contract-so as to make the later transaction a npw and independent .contract. Fischer v. Meiroff, 192 Wis, 482, 213 N. W. 283; Taylor v. Dall L. & Z. Co. 131 Wis. 348, 358, 111 N. W. 490; Hutchins v. Bautch, 123 Wis. 394, 397, 101 N. W. 671; Ypsilanti L. & C. Co. v. Leslie, 218 Mich. 664, 188 N. W. 395; Sandusky G. Co. v. Borden’s C. M. Co. 214 Mich. 306, 183 N. W. 218, 224.

The conclusion reached by the trial court must be affirmed.

By the Court. — Judgment affirmed.