West Allis Lumber Co. v. Wiesenthal

124 N.W. 498, 141 Wis. 460, 1910 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: February 1, 1910
• Status: Published

Opinion

Maeshall, J.

Tbe subcontractor’s notice to tbe proprietor did not, witb commendable fulness, comply witb the requirement of sec. 3315, Stats. (1898), as to stating tbe ■amount due from tbe principal contractor; but it did comply therewith substantially. There was no difficulty in determining therefrom and the statement, made a part of it, tbe ■exact amount claimed to be due. . That was sufficient. Such •compliance satisfied tbe statute. Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136; Chandler L. Co. v. Fehlau, 137 Wis. 204, 117 N. W. 1057.

Tbe learned circuit court committed fatal error in ruling that tbe owner of tbe building could not reduce tbe claim of tbe subcontractor by offsetting damages for breach of bis contract witb tbe principal contractor, pleaded in tbe form of a counterclaim. Tbe proposition involved is ruled by the statute itself (sec. 3315, Stats. 1898), and by Seeman v. Biemann, 108 Wis. 365, 376, 84 N. W. 490. It was said by tbe court in tbe Beeman Case, that in an action to enforce a subcontractor’s lien under tbe statutes of this state, tbe owner •of tbe property affected is entitled to tbe benefit of all tbe •defenses against tbe claim possessed by tbe principal contractor ; referring to tbe statute. ■ -Tbe term “defenses” as there used includes all claims by way of setoff which tbe principal contractor has against the subcontractor. True, tbe proprietor cannot obtain an affirmative judgment against the subcontractor in the right of tbe principal contractor, but he can have full benefit of tbe setoff, which is pleadable as a counterclaim. Schumacher v. Seeger, 65 Wis. 394, 27 N. W. 30. Tbe statute expressly so provides:

“In actions in courts of record a setoff claimed by tbe defendant shall be pleaded as. a counterclaim and regulated by tbe rules of pleading and practice applicable to counterclaims. . . Sec. 4264, Stats. (1898).

Tbe learned court overlooked the fact that this court derided in Seeman v. Biemann, supra, that the property owner, in a case of this sort, has all the rights of the principal contractor as to such matters as will qualify or defeat the claim ■of tbe lien claimant; and further overlooked tbe fact that iaatter of setoff is to be treated, in pleading, the same as a counterclaim; and, further, that where the facts constitute a good setoff in favor of tbe party pleading them, but do not constitute a cause of action in his favor against the complainant, the pleading setting up tbe setoff in form as a counterclaim, is not demurrable for insufficiency, although it improperly demands an affirmative judgment. Schumacher v. Seeger, supra.

By the Gourt. — Tbe judgment is reversed, and the cause remanded for further proceedings in~respect to the appellant’s claim of setoff and for judgment according as tbe facts in ■that respect and those heretofore found, may appear.