#### Carl Miller Lumber Company, Respondent, vs. Elfers and others, imp., Appellants.

*October 6*

October *24, 1916.*

*Mechanics’ liens: Notice of claim: Sufficiency: Statement of materials furnished.*

1. The right to a lien given by see. 3315, Stats. 1911, was lost if the notice of claim of lien given pursuant to that section failed to comply with the statutory requirements.

2. A notice of claim of lien which recited that the claimant was a lumber dealer, but contained no statement as to what materials were furnished by it, was not a sufficient compliance with sec. 3315, Stats. 1911.

*216Appeal from a judgment of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Reversed.*

Tbe appeal is from a judgment of foreclosure of a mechanic’s lien in favor of plaintiff and against tbe defendants.

Tbe plaintiff and respondent, a corporation engaged in business as lumber dealers in tbe city of Milwaukee, Wisconsin, delivered to tbe defendant Alfred Hoffmeister, a contractor, certain lumber of tbe value of $948.61. Tbe lumber was used by tbe contractor in tbe repairing and construction of a flat building and cottage on premises owned by tbe defendant *Mary Elfers.*Work on tbe building was commenced in June and completed in October, 1911. Tbe last date of tbe delivery of tbe lumber was September 1, 1911. On July 24tb tbe plaintiff signed and delivered to tbe defendant Hoffmeister a writing as follows:

*“To whom it may concern:*On receipt of eight hundred dollars, we, tbe undersigned, hereby waive all rights and claims of a mechanic’s lien for lumber furnished to tbe order of A. Hoffmeister for thé erection and construction of a certain two-story frame flat building situated on Holton street between Wright and Clarke street.”

This was taken by tbe defendant Hoffmeister, delivered to tbe defendant Elfers, and a payment made by her to tbe contractor. Nothing was paid to tbe plaintiff at tbe time of tbe signing of this writing and no payments made .to it on this account except two instalments of $100 each on July 29th and August 22d.

On October 19, 1911, tbe plaintiff served a notice of claim of lien upon tbe defendants, tbe substantial parts of which are as follows:

*“August Elfers and Mary*Elfers, *his wife.*

“Sir: You will please take notice that tbe undersigned, *Oarl Miller Lumber Company,*a corporation . . . doing business in tbe city of Milwaukee, Wisconsin, as lumber dealers, has been employed by Alf. Hoffmeister, a contractor doing business in said city, for tbe following purpose, to wit: *217for tbe erection and construction of a certain two-story frame flat building situated on tbe following described real estate in tbe county of Milwaukee, state of Wisconsin, to wit: [then follows description] ; wbicb said work was done for you and materials furnished on said property, under a certain contract entered into by and between you and said contractor, Alf. Hoffmeister, and sucb work and labor were performed and materials furnished on and between tbe 8th day of June, 1911, and tbe 1st day of September, 1911, both days inclusive, at and for tbe agreed price of $948.67, and which said work and labor and materials were actually used in, upon and for tbe erection and construction of said building, under said contract, between you .and tbe said contractor, Alf. Hoff-meister.

“That tbe last day on wbicb sucb work and labor were performed and materials furnished was on tbe 1st day of September, 1911; and that said contractor, Alf. Hoffmeister, is indebted to tbe undersigned for tbe performance of said work and labor and tbe delivery of said materials in tbe sum of nine hundred forty-eight 67/100 dollars, of wbicb no part has been paid except July 29 by cash $100, August 22 by cash $100, leaving tbe amount of $748.67 and interest from October 19, 1911, due tbe undersigned, and that all of said work and labor was performed and materials furnished by the undersigned as subcontractor under said contractor, Alf. Hoffmeister.

“Wherefore tbe undersigned claims tbe benefit of tbe lien given and granted to us by chapter 143 of tbe Eevised Statutes of 1878 of tbe state of Wisconsin, and tbe several acts amendatory thereof and pursuant to tbe law in sucb case made and provided, for tbe amount herein stated due tbe undersigned.”

This amount being 'unpaid, suit was commenced against tbe parties hereto by tbe plaintiff and a copy of tbe notice was attached to and made a part of tbe complaint, a demurrer was interposed, and tbe question of the sufficiency of tbe notice was raised on that demurrer. Tbe demurrer was overruled. More than a year elapsed from sucb proceeding before tbe trial and no appeal was taken therefrom. Upon tbe trial a *218demurrer ore *tenus*was interposed to tbe complaint and overruled. Judgment was entered in favor of the plaintiff for the amount claimed, declaring the same to be a lien on the property of the defendant Elfers, from which judgment this appeal is taken.

*O. W.*Bow, for the appellants.

*F. X.*Boden, for the respondent.

Esci-iweiler, J.

It is contended by defendants that the notice of claim of lien by the plaintiff was insufficient under the calls of the statute to give to it a right of lien, and that in any event the writing signed by the plaintiff on July 24th, set out at length in the statement of facts, should be considered a waiver of any rights the plaintiff may have had against the real estate of the defendant *Mary Elfers.*

Sec. 3315, Stats. 1911, which was in effect at the time the materials were furnished by the plaintiff, provided that such materialman or subcontractor should, within sixty days after doing the work or labor or furnishing the materials, give notice in writing setting forth that he has been employed by the principal contractor to perform or furnish and has performed or furnished work, labor, or material, with a statement of the labor performed or the materials furnished, the amount due therefor from such principal contractor, and that he claims a lien, etc.

• The provision that now appears in the same section to the effect that in the event that any owner shall complain of the insufficiency of such notice the burden of proof shall be upon him to show that he has been misled or deceived by such insufficiency thereof, first appeared by ch. 213, Laws 1913. The construction, therefore, given to this notice must be upon the law as it stood in the Statutes of 1911. Under that statute the right of the lien was lost unless the notice contained the statutory requirements. *Security Nat. Bank v. St. Croix P. Co.*117 Wis. 211, 220, 94 N. W. 74.

*219In tbe notice before ns there is no statement of what materials were furnished by plaintiff. The recital in the notice that plaintiff is a lumber dealer and the fact appearing in the evidence that lumber was furnished are not sufficient to mate this a valid notice. *Chandler L. Co. v.*Fehlau, 137 Wis. 204, 208, 117 N. W. 1057.

There being a failure of proper notice, no judgment for lien could be entered. This disposition of the case makes it unnecessary to consider whether there was a waiver of lien by the writing of July 24, 1911.

*By the Court.*— Judgment reversed, with directions to dismiss the complaint.