Opinion
November 27, 1964 —
January 5, 1965.
APPEAL from a judgment of the county court of Dane county: WILLIAM C. SACHTJEN, Judge. Affirmed.
For the appellants there were briefs and oral argument by Richard R. Rynders of Madison.
For the respondents there was a briefs and oral argument by Max H. Klein of Middleton.
A brief amicus curiae was filed by Grootemaat, Cook Franke, attorneys, and O. A. Grootemaat of counsel, all of Milwaukee, for the Wisconsin Retail Lumbermens Association.
The appellants are materialmen who furnished materials to Glen W. Kuhnly, a general contractor, for the construction of a home owned by the respondents Robert B. Miller and Doris M. Miller. The appellants did not have a formal subcontract to furnish materials for this project but simply filled orders for such materials as Mr. Kuhnly placed with them from time to time. Mr. Kuhnly did not buy materials exclusively from the appellants; he placed orders with firms where he could obtain the materials at the best price.
The appellants made their first delivery of materials to the Miller job on December 17, 1962. From then until March 6, 1963, numerous orders totaling $1,500 were delivered, all on credit. On March 6, 1963, the appellants refused further credit to Mr. Kuhnly until the indebtedness was paid. The account was paid in full by Mr. Kuhnly on March 11, 1963.
Thereafter, commencing on March 21, 1963, the appellants filled additional orders on credit up to April 24, 1963 The total amount of these additional orders was $949.31. On June 7, 1963, the appellants served the respondents Robert and Doris Miller with notice that the appellants had furnished materials on the project between March 21 and April 24, 1963, in the amount of $949.31 and that they would "claim a lien" in the event they were not paid by Mr. Kuhnly.
The respondents took the position that the lien was not valid because the required notice under sec. 289.02(1), Stats., was not given before or within one hundred twenty days from December 17, 1962, which was the day, they contend, that the first materials were furnished.
The trial court agreed with the respondents' contention and held that the appellants were not entitled to a lien. Judgment was entered in favor of the respondents, dismissing the appellants' complaint, and it is from such judgment that this appeal is taken.
Statute Involved.
"289.02(1) Notice to owner . . . Every person, other than the contractor who furnishes labor or materials in any of the cases enumerated in s. 289.01, shall have the lien and remedy provided by this chapter, if before or within 120 days after furnishing the first labor or materials he gives notice in writing to the owner either by personal service on the owner or his agent or by mailing a copy thereof addressed to such owner or his agent at his last known postoffice address stating that he has been engaged to furnish labor or materials, . . . and . . . that he is giving such notice pursuant to the Wisconsin mechanics' lien law and will claim a lien against such real estate in the event he is not paid by the contractor for such labor and materials."
In this case, we must determine whether the materialmen gave timely notice under sec. 289.02(1), Stats., in order to qualify as lienholders against the owner of the building. Under the statute, a supplier of materials is required to give notice "within 120 days after furnishing the first labor or materials." The problem requires our applying the quoted language to the facts of the instant cases
The notice claiming a lien was given to the owners on June 7, 1963. This date is more than one hundred twenty days from the date when an original delivery of materials was made (December 17, 1962). However, it is within one hundred twenty days from the date (March 21, 1963) which the appellants claim was the date when deliveries were first made under a new contract relationship.
The appellants stress the fact that they were under no express contract to furnish materials for this construction job. The general contractor purchased materials wherever he found it advantageous to do so. The appellants also stress the fact that after making numerous deliveries on credit between December 17, 1962, and March 6, 1963, they declined to make further deliveries until they were paid for the deliveries which had been made. The account was in fact paid in full on March 11, 1963, and the materialmen urge that the next delivery on March 21, 1963, was made under a new and independent arrangement. If the supplier's latter position is correct, the notice given on June 7, 1963, was timely.
There was a break in the deliveries from March 6, 1963, until March 21, 1963, a period of two weeks. Was this a sufficient interruption so as to have ended continuity of the transactions for lien purposes? In 2 Jones, Liens (3d ed.), p. 664, sec. 1435, the author states:
"If the work was done or the materials furnished for separate and distinct purposes, or under distinct contracts or orders, though in executing one and the same contract with the owner, there is no presumption of a continuous account, and the right of lien must date from the time of doing the different jobs of work, or furnishing the different parcels of materials."
However, the author thereupon adds the following:
"But if there was a continuous dealing and running account, and the work was done and the materials furnished at short intervals, and were appropriate to the condition and progress of the building, a presumption arises that it was understood from the beginning that the claimants were to do the work or furnish the materials for the construction of the building as the same should be required; . . ."
In our opinion, the instant case is controlled by the reasoning set forth in Taylor v. Dall Lead Zinc Co. (1907), 131 Wis. 348, 358, 111 N.W. 490, where the court said:
". . . the existence of such unity of contract is not essential, however, to the unity of the transaction when the latter appears from the continuity of the services, their application to a single enterprise, and the attitude of the parties toward it, . . ."
The following observation in the Taylor Case, at page 357, is particularly applicable to the instant case:
"Where, however, the continuity of such deliveries is broken by long and unusual periods of time, a presumption against the unity of the transaction doubtless arises, unless such interruption and severance in time be clearly explained." (Emphasis added.)
While it is difficult to pronounce what period of time will be deemed to be "long and unusual," we have no hesitancy in concluding that the trial court was correct in regarding this two-week interruption as insufficient to create a new date for lien purposes when the delivery of materials was resumed.
The mechanics'-lien statute has frequently been amended to extend the time in which a materialman must give notice. Under ch. 322, Laws of 1943, the period was extended from thirty days to sixty days; under ch. 191, Laws of 1959, it was again amended to one hundred twenty days. Notwithstanding the fact that such enactments are benefical [beneficial] to suppliers, the notice requirement is obviously also designed for the protection of the owner of the building. Sisters of Mercy v. Worden-Allen Co. (1932), 208 Wis. 457, 465, 243 N.W. 456; Dayton Hotel Co. v. Farley Loetscher Mfg. Co. (1931), 205 Wis. 112, 114, 236 N.W. 595.
By the Court. Judgment affirmed.