#### Wiedenbeck-Dobelin Combany and another vs. Mahoney and others, imp., Appellants, and Yawkey-Crowley Lumber Company, Respondent. Same vs. Mahoney and others, imp., Respondents, and American Cement Plaster Company, Appellant.

April *13*

May *4, 1915.*

*Mechanics' liens: Lienable and nonlienable items in claim: Separation: Good faith: Form boxes for concrete work: Plaster for other buildings: Application of payments.*

1. In the absence of fraud or bad faith the mere fact that a lien is claimed for some items for which no lien exists, so that the claim is excessive, will not defeat the whole lien, where the lienable and nonlienable items can be ascertained and separated.

2. Where the form boxes used for concrete work did not become a part of the building but remained suitable for further use, a subcontractor was not entitled to a lien on the building for that part of the lumber furnished by him which was used in making such boxes.

3. It appearing that a payment made by the principal contractor to the subcontractor, after the furnishing of the lumber used for such form boxes, was in fact (although not so entered upon the subc’ontractor’s books) a full payment for all materials furnished up to that time, and in the statement attached to the claim for lien that portion of the account being easily separable from the charges for materials thereafter furnished, equity requires that said nonlienable item be treated as paid; and it not appearing that the subcontractor had knowingly included nonlienable material in the claim, the lien is enforceable for the balance due.

4. Findings by the trial court that a subcontractor intentionally included in its claim for lien items for plaster furnished to the principal contractor to be used and which was used in other buildings, and that such items cannot be ascertained and sep- ' arated from those actually used in the building on which the lien is claimed, are *held*erroneous.

Appeal from a judgment of tbe circuit court for Dane county: E. Ray Stevens, Circuit Judge.

*Affirmed in part; reversed in part.*

This is an action to foreclose mechanics’ and materialmen’s *642liens on real estate owned by tbe *Mahoney*sisters and located on State street in tbe city of Madison.

In tbe month of April, 1912, tbe Muskegon Construction & Engineering Company entered into a contract with *Margaret E. Mahoney*and *Josephine 8. Mahoney*for tbe erection of a building on State street in tbe city of Madison. Tbe *Equitable Surety Company*entered into an undertaking whereby they undertook that tbe Construction Company would faithfully perform its building contract with tbe *Mahoney*sisters. Tbe Construction Company entered into a contract with tbe *Yawlcey-Crowley Lumber Company*whereby tbe *Lumber Company*agreed to furnish tbe mill work at tbe price of $5,119 and all tbe lumber to be used in tbe building at specified prices per thousand. It appears that tbe *Yaivhey-Crowley Lumber Company*furnished mill work and lumber amounting in value to $9,399.85, of which amount a balance of $6,052.06 remains unpaid. A part of tbe lumber so furnished was used by tbe Construction Company for form boxes used in tbe construction of tbe cement work of tbe building. All of tbe lumber used for such form boxes was delivered between June 6 and September 5,1912. In July the contractor paid tbe *Lumber Company*$700, and by January 23, 1913, $3,316 bad been paid on tbe account, which fully paid for all tbe material delivered under tbe contract up to this date. Tbe total cost of tbe material used for tbe form boxes amounted to $342.51. When tbe *Lumber Company*gave notice of claim for lien there was nothing showing any distinction of the lumber used for form boxes from that used in the building. The form boxes did not become a part of the building and they have been removed and stored for further use if desired by the owner.

The circuit court found that there is due the *Y'awlcey-Crow-ley Lumber Company*for tbe material furnished under its contract with tbe Construction Company tbe sum of $6,052.06, together with tbe interest thereon from March 27, 1913; that *643a portion of such lumber was used for shoring and for form boxes for concrete work; that the part used for shoring was so destroyed that it could not be otherwise used; that the payments made on the bill of the *Lumber Company*before the notice of the claim for lien was filed greatly exceeded the value of the lumber used in form boxes; that from the itemized statement attached to the claim of lien the amount and value used in these form boxes is ascertainable and that equity requires that the payments made on and prior to January 23, 1913, be first applied to this separable nonlienable item. The court accordingly awarded judgment allowing the lien of the *Yawlcey-Crowley Lumber Company*for $6,052.06 with interest from March 27, 1913.

As to the claim of the *American Cement Plaster Company,*the court found that this company, under contract with the Construction Company, furnished plaster for the *Mahoney*building and two other buildings which the Construction Company was erecting in the city of Madison. The court also found that the claim of lien filed by the *Cement Plaster Company*against the *Mahoney*sisters, amounting to $465.40, included charges for plaster used in the other buildings and that this *Plaster Company's*representative knew that the claim for lien wrongfully included items for material not used in the *Mahoney*building, and “that it is not possible to ascertain from the notice and claim for lien the amount of plaster used in the *Mahoney*building.” It appears that the *Cement' Plaster Company's*Wisconsin agent, Ilealy, took a written order from the Construction Company by its president, Olson, on July 16, 1912, for thirty-five tons of cement plaster at $5.50 per ton, with a stipulation to credit ten cents for each empty bag returned. The order contained the memorandum on its face, “Eor *Mahoney*Building.” This writing was sent to the *Plaster Company's*office at Eort Dodge. Subsequent orders added to the quantity of this order. The -material was used in the *Mahoney*and the two other buildings erected by the *644Construction Company at Madison. On October 17, 1912, $135 was received by the *Plaster Company from the*Construction Company in full settlement for the cement plaster used in tbe Badger Creamery building, one of the other buildings erected by the Construction Company. On January 15, 1913, the secretary of the *Plaster Company*sent, from its head office at Eort Dodge, a statement of the balance due the *Plaster Company*for cement plaster to its attorneys at Madison, Wisconsin, amounting to $465.40. On January 18, 1913, these attorneys filed notice of claim for lien against the *Mahoney*building, attaching this statement. About this same time Healy had a settlement with the Construction Company and received payment of $114 as balance due for the plaster used in the De Longe building, which had been included in the statement of the secretary of January loth and sent to the attorneys at Madison. It also appears that the *Piaster Company at*its home office gave immediate credit for this sum. There is nothing shown to indicate that the secretary and officers at the home office had any knowledge, when they sent the statement to their attorneys on January 15, 1913, that the claim embraced any charge for material not used in the *Mar honey*building, nor does it appear that Healy did anything prior to the notice of claim for lien by rhe attorneys warranting the inference that he sought to charge the *Mahoney*sisters with items of material which he knew were not used in the construction of the *Mahoney*building. The evidence of the representative of the Construction Company establishes that the sum of $204.80 is the balance due for plaster used in the construction of the *Mahoney*building.

For the appellant *American Cement Plaster Company*there were briefs by *Buell ■& Lucas,*and oral argument by *F. ~W. Lucas.*

There were briefs signed by *Olin, Butler, Btehbins, Curkeet*& *Stroud*and *La Follette & Rogers,*attorneys for *Margaret F. Mahoney*and *Josephine 8. Mahoney,*and by *Welton, Marks &**645*Porter,*attorneys for *Equitable Surety Company;*and tbe cause was argued orally by *C. E. Maries*and 1'7. *L. Curlceet.*

*Charles N.*Brown, attorney, and *Sam T.*Swansen, of counsel, for tbe respondent *.Tawhey-Crowley Lumber Company.*

SiebecKeb, J.

Tbe trial court found that tbe material furnished by tbe *Tawlcey-Crowley Lumber Company*and used by tbe Construction Company for form boxes is not lienable because it was not incorporated into the building; that tbe boxes were removed and remain fit for use for construction of other buildings. Tbe evidence sustains this finding of fact. It is claimed by tbe owners of tbe building that tbe *I/umber Company*forfeited their right to any lien on their property because they knowingly included tbe material used for these form boxes in their claim for lien as material used in tbe construction of tbe building. This contention must fail for tbe reasons (1) that tbe material for form boxes was fully paid for by tbe Construction Company on January 23, 1913, and (2) it does not appear that tbe *Lumber Company*knowingly made any claim for such material in their notice of claim for lien. It is without dispute in tbe evidence that tbe payment of $800 to tbe *Lumber Company*on January 23d constituted in fact full payment of all that was then due for material furnished by tbe *Lumber Company*under its contract. Tbe omission of tbe *Lumber Company*to enter it on its books as a full discharge of its account to date against tbe Construction Company does not prevent this result. Tbe fact is, it was a payment of its claim and should be so regarded under tbe facts and circumstances of tbe .case. There is no difficulty in separating this portion of tbe account from tbe charges for material thereafter furnished, and the statement of account attached to the notice of claim for lien is in no way open to tbe objection that lienable and nonlienable items of material as included in tbe account cannot be ascertained and separated. Tbe circuit court properly held “that it is pos*646sible from snob notice and claim to ascertain tbe amount and value of tbe lumber used in these form boxes; that equity requires that tbe payments be first applied to these separable nonlienable items.” *North v. La Flesh,*13 Wis. 520, 41 N. W. 633. The facts of this ease clearly distinguish it from the case of *Rinzel v. Stumpf,*116 Wis. 287, 93 N. W. 36. In that case the court points out the reason for loss of lien by the claimant, namely: “The trouble here is that there is no evidence presented in the bill of exceptions which enables us to fix the price of the tables or the shelving. The bid of the plaintiff was to do the work for a lump sum; hence, it not appearing how much the lienable and nonlienable articles were to cost, the judgment cannot stand.” The decisions of this court declare that the mechanic’s lien laws provide new and additional remedies to those of the common law and are to be liberally construed to accomplish their equitable purpose of aiding materialmen and laborers to obtain compensation for material used and services bestowed upon property of another and thereby enhancing its value. The right to liens recognized in our law rests on principles of equity and business necessity. In the enforcement of this right courts recognize its nature and impose on parties asserting it the duty that they “must come into equity with clean hands.” If the party has complied with the statute by giving the required notice and properly filed his claim for lien, this right thereto is not to be defeated by innocent mistakes. The courts generally declare that, “. . . in the absence of fraud or bad faith, the mere fact that a lien is claimed for some items for which no lien exists, and is therefore excessive, will not defeat the whole lien.” 20 Am. & Eng. Ency. of Law (2d ed.) 411; *Springer L. Asso. v. Ford,*168 U. S. 513, 18 Sup. Ct. 170; *Gerard B. Allen*& *Co. v. Frumet M. & S. Co.*73 Mo. 688.

The court found as a fact that the *American Cement Plaster Company*knowingly and intentionally included in its claim *647for lien against tbe property of tbe *Mahoney*sisters items for plaster wbicb tbe company bad supplied to tbe Construction Company to be used and wbicb was used in other buildings, and that these items cannot be ascertained and separated from those actually used in and for tbe *Mahoney*building. We 'think tbe court erred in these findings of fact. From the evidence, as shown in tbe above statement of facts, it appears that no one at tbe home office of tbe Cement *Plaster Company*bad any knowledge that tbe statement of items for wbicb a lien was claimed contained charges for plaster not used in the *Mahoney*building. Nor does tbe evidence disclose that Healy knew a claim of lien was being made for such items. Tbe transactions of the company and its-attorneys indicate with reasonable distinctness that they were mistaken in believing that tbe balance due on tbe company’s account was for plaster used in tbe *Mahoney*building. True, Mr. ITealy may have been negligent in not taking tbe necessary steps to separate from tbe charges embraced in tbe claim of lien against tbe *Mahoney*building those actually used in another building, but. there is no evidence that be did so with intent to defraud tbe *Mahoney*sisters. We are of the view that inclusion of tbe items of plaster used in tbe De Longe building in this claim of lien is attributable to inadvertence and mistake and without any intent to defraud and therefore should not defeat tbe *Cement Plaster Company’s*right to a lien for tbe material wbicb was in fact used in and for the erection of the building. Tbe evidence shows definitely what amount remained unpaid on tbe account for material used in tbe *Mahoney*building after tbe payment of tbe $114 due for material used in tbe De Longe building and tbe credit of $146.60 for sacks returned. We discover no difficulty in ascertaining from the statement accompanying tbe notice of claim of lien and the deduction of these last two credits that tbe amount due and unpaid for plaster us§d in tbe *Mahoney*building is $204.80. *648The judgment of the trial court denying the *dement Plaster Company's*right to a lien on the premises involved must be reversed.

*By the Gourt.*— That part of the judgment from which *Margaret E. Mahoney, Josephine S. Mahoney,*and *Equitable Surety Company*appealed is affirmed, and that part from which the *American Cement Plaster Company*appealed is reversed, and the cause remanded with directions to award the *American Cement Plaster Company*a lien on the premises involved in the action and the right of this company to join in the foreclosure and sale of such premises as the judgment awards to other lienors.