#### W. H. Pipkorn Company, Respondent, vs. Evangelical Lutheran St. Jacobi Society of the City of Milwaukee, Appellant, and others, imp., Respondents.

*December 8, 1910*—

January *10, 1911.*

*Liens: Subcontractors: Application of payments: Notice and claim: Sufficiency: Amount due: Misnomer of owner: Appeal: Findings.*

1. The general rule that, where a debtor makes a voluntary payment to a creditor who has several claims against him and fails to direct where such payment shall he applied, the creditor has a right to apply the same on any of the claims, governs a payment made by a contractor to a materialman who had furnished materials to him on several different jobs, as against a property owner from whom the contractor had received the money so paid.

2. A notice of subcontractor’s lien sufficiently complies with sec. 3315, Stats. (1898), in respect to stating the *amount due*where it states the total amount of the bill and the amount paid thereon, the balance due being necessarily inferable from the facts stated. *Chandler L. Co. v. Fehlau,*137 Wis. 204, distinguished.

3. A notice of subcontractor’s lien directed to “St. Jacobi Congregation,” etc., but properly served upon the real owner, “Evangelical Lutheran St. Jacobi Society,” etc., is sufficient, the statute (sec. 3315, Stats. 1898) not requiring that the notice be *directed*to the owner, but merely that it shall be *given*to the owner and shall contain certain particulars.

4. Where the complaint of a subcontractor alleges that a claim for a lien was duly filed which contained the name of the person against whom the demand was claimed, a finding of that fact by the trial court will not be disturbed on appeal where the record shows that the claim for lien filed in the clerk’s office was received in evidence without objection and the certificate to the bill of exceptions shows the loss of some of the exhibits, although the owner’s name was not correctly given in the copy of the claim annexed to the complaint and it does not appear that any amendment was asked for or allowed.

Appeal from a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.

*Affirmed.*

This action was brought by the plaintiff, a furnisher of *502building materials, to foreclose a mechanic's lien upon the property of defendant *Evangelical Lutheran St. Jacobi Society of the Oity of Milwaukee.*The contractor, William Stoll, and also the *United States Gypsum Company, Herman Mettelmann,*and *Maxwell, Forbes & Stillman Company,*who furnished materials, were impleaded as defendants. The court awarded judgment in favor of the plaintiff and against the contractor, William Stoll, for the amount found due, also gave judgment against said William Stoll, contractor, for the amount found due the other impleaded defendants respectively, and awarded a lien upon the property of defendant for the several amounts and judgment of foreclosure and sale of the property according to the statute. The defendant *Evangelical Lutheran St. Jacobi Society*appealed.

Eor the appellant the cause was submitted on the brief of *Lorenz & Lorenz.*

For the respondent *W. H. Piphorn Company*there was a brief by *James T. Drought;*for the respondent *Mettelmann*a brief by *Reukema*& *Lemlce;*for the respondent *Maxwell^ Forbes & Stillman Company*a brief by *Miller, Made & Fair-child;*for the respondent *United Stales Gypsum Company*a brief by *Winkler, Flanders, Bottum &■ Fawsett;*and the cause was argued orally by *Mr. Drought, Mr. W. F. Adams,*and *Mr. Charles E. Wild.*

KekwiN, J.

The findings of fact below are attacked on this appeal. The plaintiff was a furnisher of building materials and the defendant Stoll a contractor, and at the time he purchased the materials from the plaintiff which went into the building of the appellant he had seven jobs on hand besides the appellant’s for which he bought materials from the plaintiff.

The eighth finding of fact, which among other things finds the amount due the plaintiff, is attacked as not being supported by the evidence, and this contention is based upon the *503alleged failure of tbe plaintiff to credit tbe appellant with two amounts, one of $200 and tbe other of $150. These amounts were paid to plaintiff by Stoll and applied upon claims which the plaintiff had against him on account of material furnished him for other jobs, and the contention in this regard is whether or not plaintiff was justified in so applying the payments. It appears from the evidence' that no application of these amounts was made by the appellant and that plaintiff applied them on other indebtedness against Stoll for building materials which were furnished him and used in other buildings. So the question is one of application of payments. The general rule is well settled that, where a debtor makes a voluntary payment to a creditor who has several claims against him and fails to direct application of the payment on any of the claims, the creditor has the right to apply the payment to any of the claims which he has against the debtor. *North v. La*Flesh, 73 Wis. 520, 41 N. W. 633; *Coxe Bros. & Co. v. Milbrath,*110 Wis. 499, 86 N. W. 174.

There is ample evidence to support the findings that the amounts before referred to were applied by the plaintiff as found by the court, therefore the eighth finding is supported by sufficient evidence. Whether under the facts of this case the court below would not have been justified in making the application as made in the absence of application by the plaintiff we need not decide, because we are satisfied that there is sufficient evidence to support the finding that-such application was made by plaintiff. What has heretofore been said respecting the rule of application of payments applies to the contention of appellant that the judgment in favor of the *United States Gypsum Company*should be reversed. The question is one of application of payment, namely, whether two items of payment made by defendant Stoll to the *Gypsum Company*and which were applied to extinguish Stoll’s indebtedness to that company on account of jobs other than appellant’s were properly applied. There is ample evidence to-*504support the findings below upholding the judgment in favor of the *United States Gypsum Company.*

Regarding the respondent *Maxwell, Forbes &. Stillman Company*it is insisted that the judgment should be reversed •on the ground that no sufficient notice of subcontractors’ lien was served upon the appellant. The objection made is that the statute (sec. 3315, Stats. 1898) was not complied with, in that the amount due was not stated in the notice, and *Chandler L. Co. v. Fehlau,*137 Wis. 204, 117 N. W. 1057, is relied upon by appellant. The *Chandler Case,*we think, is distinguishable from the instant case. In that case there was no statement of the amount paid or the amount due, while in the present case the amount of the bill is stated and the amount paid. So the amount due is necessarily inferable from the facts stated. We think the notice was sufficient. *Laev L. Co. v. Auer, 123*Wis. 178, 101 N. W. 425; *Hausmann Bros. Mfg. Co. v. Kempfert,*93 Wis. 587, 67 N. W. 1136; *West Allis L. Co. v. Wiesenthal,*141 Wis. 460, 124 N. W. 498.

It is claimed that the judgment in favor of respondent *Herman Mettelmann*should be reversed because *Metlelmann*failed to serve proper notice of lien, in that his notice was directed to “St. Jacobi Congregation (a corporation) of Milwaukee, county of Milwaukee and said state,” whereas it should have been directed to the appellant by its proper name, *Fvangelical Lutheran St. Jacobi Society of the City of Mil-waulcee;*and further that in the claim for lien filed the appellant is described the same as in the notice, by a wrong name.

It will be observed upon examination of secs. 3315 and 3320, Stats. (1898), that sec. 3315, respecting the notice, does not require the notice to be directed to the owner, merely that the notice shall be given to the owner, and provides what the notice shall contain, namely, “that he has been employed by *505sucb principal contractor or subcontractor to perform or furnish, and bas performed or furnished, such work, labor or material, with a statement of the labor performed or the materials furnished, the amount due therefor from such principal contractor or subcontractor, and that he claims the lien given by this chapter.”

It is true sec. 3320 requires the name of the person against whom the demand is made to be stated in the claim for-lien, but it also provides that the claim for lien may be amended as pleadings may be. The cross-complaint alleges that *Mettel-mann*gave due notice to appellant, and further alleges that he duly filed his claim for a lien, and that such claim so filed contained the name of the person against whom the claim was made, and that notice of the claim for mechanic’s lien was given “by delivering the same to Gottlieb Oestrich, president of the *Evangelical Lutheran St. Jacobi Society of the Gity of MilwavJeee,*and leaving the same with him.” So it will be seen that the allegations of the cross-complaint are sufficient to show service of the notice on the appellant, and that a claim for lien was duly filed which contained the name of the person against whom the demand was claimed. The court below found these facts in favor of *Mettelmann,*but it is said the findings are not supported by the evidence. TJpon the record before us we cannot say that the findings are not supported by the evidence. It appears from the record that the claim for lien filed in the office of the clerk of the court by *Mettel-mann*against the appellant was put in evidence without objection. Also notice of subcontractor’s lien with affidavit of service was offered and received without objection. It also appears from the certificate to the bill of exceptions that certain exhibits put in evidence are not in the bill of exceptions because they had been lost and could not be found. A point is also made under this head respecting application of payment, but we think the findings as to amount due are sup*506ported by tbe evidence, and tbe application oí payment was properly made under tbe rule heretofore stated. From wbat bas been said it follows that tbe judgment of tbe court below must be affirmed.

*By the Court.*— Tbe judgment is affirmed.