Summary
holding that prior agreement where defendant agreed to construct house and furnish materials and labor did not merge in the warranty deed
Summary of this case from DAKOTA, MINNESOTA EASTERN RAILROAD CORP. v. WSOROpinion
February 7, 1956 —
March 6, 1956.
APPEAL from a judgment of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Dale G. Waterman of La Crosse.
For the respondent there was a brief by Steele, Mau, Toepel Klos of La Crosse, and oral argument by Elmer B. Mau.
This action was commenced on August 21, 1952, for the foreclosure of a mechanic's lien. Plaintiff sought recovery upon his alleged claim that he and defendants Arnold C. Evanson and Ruth A. Evanson, his wife, had entered into an oral agreement by the terms of which he had agreed with them to construct a dwelling house and furnish the materials and labor therefor, for which said defendants agreed to pay him the retail price for the materials, plus the cost of labor furnished, plus five per cent for supervision and miscellaneous services, and $675 for the lot on which the house was to be built. It was contended by plaintiff that the total amount due under the contract was $10,991, of which $7,575 had been paid. Defendant Union State Bank was joined as a subordinate lien holder but made no appearance.
The defendants Evanson, who will hereinafter be referred to as the "defendants," contended that by the terms of the contract they were to pay for the house and lot the sum of $8,500, plus $250 for a fireplace, the amount to be reduced by the value of the labor to be furnished by them; that they were to pay plaintiff "only such price as in good conscience he should expect or would be legally entitled to as a supervisor and agent of the defendants;" that plaintiff's supervision was of no value and caused useless expenditure; that the services of plaintiff designated in the complaint as "miscellaneous" were those of a real-estate broker for which he is not entitled to compensation; that whatever agreement existed between the parties was merged in a warranty deed given on March 5, 1951, by plaintiff and his wife to defendants conveying title to the premises to them; that plaintiff's work was defective in a number of respects and that certain of his charges are excessive; that plaintiff is not entitled to a lien because he was not a contractor, but a supervisor for defendants.
Trial was to the court without a jury and findings were made, among other things, that an agreement in accordance with the terms claimed by the plaintiff was made; that plaintiff has fully performed in accordance with such terms; that plaintiff is entitled to recover for items additional to those listed in the complaint, and as set forth in an amended complaint, the sum of $352.20; that defendants are entitled to additional credits in the sum of $60.02; that the amount due from defendants is $3,708.18, with interest thereon at the rate of five per cent per annum from December 8, 1951, the date upon which plaintiff demanded payment. Judgment of foreclosure in the usual form was entered on May 20, 1955. Defendants appeal.
It is contended that at the time of the making of the contract the defendants were not the owners of any interest in the land who entered into the contract for the improvement thereof within the meaning of sec. 289.01 (1) (c), Stats., and that, therefore, plaintiff has no valid claim for a mechanic's lien. Assuming that, as defendants contend, they had no interest in the premises at the time of the making of the contract because it was not in writing, that fact would not be fatal to plaintiff's claim for a mechanic's lien. The plaintiff was not required to prove what interest the defendants had in the premises at the time of the making of the contract. When the lien is enforced it is enforced only upon the interest of the defendants in the real estate and should it transpire that the latter have no such interest, the plaintiff would take nothing by his judgment. Willer v. Bergenthal (1880), 50 Wis. 474, 7 N.W. 352; Moritz v. Splitt (1882), 55 Wis. 441, 13 N.W. 555; Williams v. Lane (1894), 87 Wis. 152, 58 N.W. 77.
If defendants had no interest in the property prior to March 5, 1951, they acquired one however by virtue of the deed given them on that date. The lien attaches to that after-acquired interest.
"Sec. 289.12 JUDGMENT. The judgment shall adjudge the amount due to each claimant who is a party to the action. It shall direct that the interest of the owner in the premises at the commencement of the work or furnishing the materials for which liens are given and which he has since acquired, . . ." (Italics ours.) See also Hawley v. Tesch (1894), 88 Wis. 213, 59 N.W. 670, and annotation in 85 A.L.R. 928.
Defendants contend that, by execution of the deed referred to, plaintiff is estopped to assert a claim for mechanic's lien and also that thereby he has waived his right thereto. The doctrine of estoppel does not operate against one unless he has done something to induce another to change his position to his prejudice. Wyman v. Utech (1949), 256 Wis. 234, 42 N.W.2d 603. Defendants do not call attention to anything done by them and induced by acceptance of the deed which has prejudiced them. A waiver is an intentional act; an intentional relinquishment of a known right. Wisconsin Club v. John (1930), 202 Wis. 476, 233 N.W. 79; Estate of Oeflein (1932), 209 Wis. 386, 245 N.W. 109. We find nothing in the record to suggest that by execution and delivery of the deed plaintiff intended to forego his right to the lien. The deed was executed in compliance with the terms of the contract and for no other apparent purpose.
Defendants state as one of the questions involved that "the warranty deed given by the plaintiff and conveying lands owned by him was in fact a sale of the lands in question." If the statement is to be construed as meaning that the entire agreement was merged in the deed the contention is without merit. The defendants agree that it was understood that they should have the deed and that its execution and delivery constituted only one of the acts to be performed by plaintiff.
Defendants urge that we treat the item of "five per cent for supervising and miscellaneous services" as a provision for payment of a real-estate broker's fee, and contend that plaintiff may not recover it because he is not a licensed real-estate broker or salesman. The testimony upon this point is not conclusive one way or the other, although it appears to us that plaintiff's activity with respect to a loan obtained by defendants and secured by a mortgage was of no great consequence. The trial court made no finding upon the subject. The burden of proving the defense was upon the defendants. They failed to meet it, at least they failed to establish what, if any, of the five per cent was charged as a fee for broker's services.
Defendants contend that the court erroneously allowed an inclusion in the recovery of some items of overhead expense in computing the cost of labor furnished. The issue was not raised by the pleadings. No request was made for a finding upon the subject and none was made. To consider defendant's contention would require that we ascertain what sum or sums were actually paid to plaintiff's various employees and what amounts, if any, were charged to defendants for overhead. The record is not in such shape as to have enabled the trial court to make the computation, and it follows, of course, that we are unable to do so. True, plaintiff testified that he hired an employee by the week without indicating or being asked what salary was paid him and for how many hours per week, and that he paid the man $1.50 per hour, suggesting that possibly (but only possibly) less than $1.50 per hour was paid, but the trial court could not have so found upon the record before it.
Finally, defendants contend that the amount of the recovery should be reduced because some of the elements in plaintiff's claim were allowed without having been itemized. In his complaint plaintiff alleged that the total amount due under his contract is $10,991, $7,575 has been paid, and that there is now owing a balance of $3,416. He did not itemize his account in his testimony given at the trial. No bill of particulars was demanded by defendants. Defendants themselves offered in evidence Exhibit 4, a statement of charges and credits consisting of eight pages and manifestly prepared by the plaintiff. It is a detailed statement of the materials furnished and states a lump sum of $1,858.07 for carpenter labor furnished. It was stipulated at the suggestion of defendants, that it represents "items set forth on slips presented by plaintiff to defendants" and was received in evidence. Upon his cross-examination of plaintiff, counsel referred to a slip which had been given defendants by plaintiff; plaintiff testified that it is a "summary of carpenter labor in connection with the construction" and that the total amount stated on the exhibit is $1,858.07, the exact amount which is carried in Exhibit 4 for carpenter labor. It does not appear that the issue was raised in the court below or that the defendants requested a finding upon the subject. No finding was made. There is no suggestion in the record that it was raised in the court below or that the court's attention was called to it. Consequently, it is not here for determination. Herro v. Heating Plumbing F. Corp. (1931), 206 Wis. 256, 239 N.W. 413.
By the Court. — Judgment affirmed.