Wagner v. McMillen

39 N.W. 777, 72 Wis. 327, 1888 Wisc. LEXIS 256

• Court: Wisconsin Supreme Court
• Decided: October 9, 1888
• Status: Published

Opinion

Cassoday, J.

Since the several lien claimants, without collusion, made demand against Jones for the same debt, it was a very proper exercise of the discretion vested in the trial court, upon the showing made and notice given and upon his .depositing the amount of such indebtedness in court, to order the substitution of such several claimants in his place, and, unless special reasons were shown to the contrary, to discharge Jones from any further liability to either party. Sec. 2610, R. S. No objection is made to such substitution, and no claim is made that the indebtedness of Jones to Porter was any greater than the amount so deposited in court. It is claimed, however, that, upon the showing made, it was error to order the discharge of Jones from all further liability to the appellants. This claim is based upon, the following allegations of their petition: “That, at the commencement of the furnishing of said materials, your petitioners notified said defendant Ansel Jones that they were furnishing ¥m. R. Porter with materials to be used in constructing for him a house, and that by such notice they should hold him responsible for the payment of such materials; that the materials were furnished in part on account of said Ansel Jones' receiving such notice and assenting to the terms thereof.”

These allegations are insufficient to charge Jones as principal contractor, or to render him, personally liable as upon a “ special promise to answer for the debt, default, or miscarriage of ” Porter. Subd. 2, sec. 2307, R. S. Besides, the petition does not seek to enforce a personal claim, but merely seeks to enforce a subcontractor’s lien in pursuance of the statutory notice given. The mere silence or assent of Jones to the alleged notification, prior to the furnishing of the materials to Porter, must be regarded as referable to the statutory liability to a lien in favor of such subcontractor. With that lien the order of the court in no manner interfered. The statute expressly provides that “ in no case shall the owner be compelled to pay a greater sum for or on account of such house, building, or other improvement, than the price or sum stipulated in the original contract.” Sec. 3315, R. S.; ch. 535, Laws of 1887. Such original contract price can only be increased when it is made to appear to the court that such owner and original' contractor “ fraudulently, and for the purpose of defrauding subcontractors, . . . fixed an unreasonably low' price in such original contract.” Ibid. There is no pretense of anything of that kind here. The cases cited by the learned counsel for the appellants, going upon the theory of agency, or joint liability, clearly have no application here.

By the Court.— That portion of the order of the circuit court appealed from is affirmed.