#### Laev Lumber Company vs. Auer and another, Appellants, and D. K. Jeffris Lumber Company, Respondent.

*October 20*

November *15, 1904.*

*Appeal: Findings by referee: Mechanics’ liens: Lien of subcontractor: Notice to owner: Service: Sufficiency: Statutes.*

1. It is not error to confirm the findings of a referee where they are supported by the evidence.

*2.*The notice required by the statute to be served upon the owner by one' who claims a mechanic’s lien as a subcontractor, where the owner is out of the state, is *held*properly served upon one who attended to the owner’s business in his absence, and who had authority to represent him in transactions pertaining to his business affairs.

3. Under sec. 3315, Stats. 1898, a notice by a subcontractor to the owner, setting forth that the subcontractor was employed to furnish, and did furnish, material as specified, for the erection and construction of the building, with the amount due from the principal contractor, fulfills the requirements of the .statutes. It is not necessary that the notice should state that, at the time of the sale to the principal contractor, it was ■agreed that the material was furnished to be used “for or in ■or ab'-ut” the erection or construction of the building. Mae-.shall, J., dissents.

*179Appeal from a-judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.

*Affirmed.*

An action to enforce a lien for material furnished by plaintiff in the construction and erection of houses for the defendant *Louis Auer.*The cause was referred, and the referee found the following facts:

The defendant *D. K. Jeffris Lumber Company*is a duly •organized corporation of this state, dealing in lumber. The defendant *Louis Auer*was at the time of these transactions the owner of the real estate described in the pleadings, and ■situated in the city of Milwaukee. On or about March 1, 1897, he entered into a contract with one John Eyan, a contractor and builder, for the erection and construction of the houses described in the referee’s report. The *D. K. Jeffris Lumber Company*sold and delivered to John Eyan lumber and shingles of the value of $212.45. This lumber was sold Ly the *D. K. Jeffris Lumber Company*to be used and it was used by the defendant John Eyan for, in, and about the erection and construction of the buildings for the defendant *Louis Auer*on the real estate above referred to. The last •charge for this material was April 15, 1897. On June 12, 1897, the *D. K. Jeffris Lumber Company*gave notice to *Louis Auer*and the *United States Fidelity & Guaranty Comp>any,*claiming a subcontractor’s lien, by serving on them the following notice:

■“To *Mr. Louis Auer*and the *United States Fidelity •& Guaranty Company*— ■

“GeNtlemeN: You will please take notice that the undersigned, the *D. K. Jeffris Lumber*Company, a corporation duly organized and existing under and by virtue of the laws of the state of Wisconsin, was employed by John Eyan, doing business under the name of the John Eyan Lumber Company at the city of Milwaukee, Wisconsin, to furnish lumber and materials as set forth in the annexed statement of account marked ‘Exhibit A’ at the prices therein set forth; that no part thereof has been paid, but’ there is still due thereon from said John Eyan to the *D. K. Jeffris Lumber*
      *180
      *Company*tbe sum of Two Hundred and Forty-Four Dollars and twenty-five cents ($244.25) ; tbat said lumber and materials were purchased by said Ryan on tbe 15tb day of April, 1897, were intended by bim to be used and were actually used in and about tbe erection and construction of your five dwelling bouses and two flats situated in *the city*of Milwaukee, county of Milwaukee and state of Wisconsin, in tbe Sixteenth Ward, on land, in tbe Southwest Quarter of Section thirty (30) in Block bounded on tbe North by Grand avenue, on tbe east by Tw'enty-fiftb street, on tbe South by Sycamore street, and on tbe West by Twenty-sixth street, more particularly described as follows, to wit: In Block One (1) Cross and Ludington’s Addition tbe South Sixty-seven (67) feet of tbe North Two Hundred Seventeen (217) feet of the East One Hundred Eifty-one and sixty-six hundredths (151.66) feet and tbe East One Hundred Twenty (120) feet of tbe South One Hundred Thirty (130) feet, being part of tbe present Lots Eleven, (11) Twelve (12) and Fourteen (14), and all of Lots Thirteen (13), Twenty-one (21)', Twenty-two (22), Twenty-three (23), and Twenty-four (24), in said Block One (1).

“Please take further notice that the said *D. K. Jeffris Lumber*Company, tbe undersigned, hereby claims a lien upon said dwelling bouses and flats and tbe lots upon which the same are situated for tbe lumber and materials furnished, in accordance with chapter 143 of tbe Revised Statutes of tbe State of Wisconsin and tbe acts amendatory thei’eof, and upon all tbe right, title and interest which you bad in said lands upon which said bouses are situated at tbe time said lumber and materials were furnished and delivered to tbe amount of Two Hundred and Forty-four Dollars and Twenty-five cents ($244.25) as aforesaid.

“Dated Milwaukee, June 12th, A. D. 1897.

“Tours respectfully,

“D. K. Jeeeeis LuMbee OoMpahy,

“By Stake & ITaNseN, Its Attorneys.”

Giving amount due therefor, with attached statement, properly signed.

The *D. I{. Jeffris Lumber Company*filed its claim for lien July 16, 1897, on the property, and brought this action with*181in due time to recover tbe amount due and to establish tbeir lieu.

Upon the confirmation of the referee’s report by the court, judgment was- awarded for the amount due, and a foreclosure and sale of all of defendant’s interest in so much of the property as might be found necessary to satisfy the judgment. This is an appeal from the judgment by the defendant *Louis Auer,*owner of the property, and.by the defendant the *United States Fidelity ■& Guaranty Company,*the surety of the principal- contractor to protect the owner against mechanics’ liens.

For the appellants there was a brief by *Winkler, Flanders, Smith, Bottum & Fawsett,*and oral argument by *F. H. Remington.*

*Otto R. Hansen,*for the respondent

SiebecKee, J.

It is contended the court erred in confirming the finding of the referee to the effect that the material furnished by the *D. K. Jeffris- Lumber Company*was sold and delivered to be used by the principal contractor for, in, and about the erection and construction of the several buildings of the defendant *Louis Auer.*Upon examination of the proof, we find that this finding is supported by the evidence of the salesman, Mr. Brink, who was in the employ of the lumber company, and made the sale of the material to Mr. Eyan, the principal contractor. He testified that the sale of the material was made by him upon -bills presented by the contractor, specifying the materials required in the construction of these buildings, and furthermore that the lumber was sold and delivered for that purpose. It is not questioned but that the material was in fact used for, in, and about the erection and construction of the buildings owned by the defendant *Louis Auer.*

It is urged that the referee erred in the finding, approved by the court, that the *D. K. Jeffris Lumber Company*made claim for a materialman’s lien by giving notice in writing, *182as required by the statute, to the owner of the buildings, that it had been employed by the principal contractor to furnish and that it did furnish him materials, with a statement of the material furnished, and the amount due therefor from the principal contractor. This finding is first assailed upon the ground that no proof of the proper service of this notice upon the owner was made. ' The statute provides that such service may be made'upon the owner or his agent, if to be found in the county where the property is situated, and, if neither can be found therein, by filing the notice in the office of the clerk of the circuit court of such county. The notice was served upon Mr. Fehr, then in the employ of the owner, who was out of the state. It appears that Fehr attended to the business of *Mr. Auerixn*his absence, and had authority to represent him in transactions pertaining to his business affairs. These circumstances, as established by the evidence, clearly show service of this notice upon the owner’s agent. .

It is contended further that the written notice served is insufficient, under the requirements of the statute. Appellants argue that this notice should state that at the time of the sale of this material to the principal contractor it was agreed that the material was furnished to be used “for or in ox* about” the erection or construction of the buildings. The statute (sec. 3315, Stats. 1898) provides that a subcontractor of a principal contractor, furnishing any material to such principal contractor, “in any of the cases mentioned in the preceding section shall be entitled to the lien and remedy given by this chapter; if within sixty days after . . . furnishing such materials, he shall give notice in writing . . . setting forth that he has been employed by such principal contractor . . . to . . . furnish and has . . . furnished such . . . material,” etc. The words “such material” manifestly refer to material furnished under the circumstances and conditions of the preceding section, giving a lien to the principal contractors for ma*183terial fumisbecL to be used “for or in or about” the erection or construction of buildings. It is apparent that no such lien can be maintained unless the material so furnished was used “for or in or about” the erection or construction of the building. Does the statute, however, require these conditions of the sale and delivery of the materials so furnished to be set forth in the notice ? The statute requires that the notice shall set forth that he has been employed by the principal contractor to furnish and that he has furnished such material, with a statement of the material.furnished, and the amount due therefor from the principal contractor, and that he claims the lien given by the chapter. The requirement that the subcontractor shall set forth in the notice that he has been employed to furnish and has furnished such material does not import that the purposes and conditions of the sale and delivery of the material to the principal contractor shall be set out in the notice. If it sets forth the facts that he was employed to furnish and that he did furnish material as specified for the erection and construction of the building, with the amount due from the. principal contractor, the terms and conditions of the statute are fulfilled. The purposes of this statute are twofold — first, to secure payment to persons who furnish material or perform labor upon the structures therein mentioned and, second, to apprise the owner that a claim therefor is made for the amount due for such labor or material. These purposes are fulfilled by a notice setting forth the facts as above stated. We find no express requirement in the language of the statute that the terms and conditions of furnishing the material to the principal contractor should be set out in the notice for a claim for a lien, and we find that the objects of the statute are fully accomplished by a notice for a claim of a lien setting forth that the claimant was employed by the principal contractor to furnish and that he did furnish material as specified for the erection and construction of the building. The notice given by the *D. K. Jeffris Lum-*
      *184
      *her Company*meets these requirements, and is sufficient under tbe statute.

We find no errors in tbe record, and must affirm tbe judgment.

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

Maeshall, J.

I am unable agree witb my brethren as to tbe sufficiency of tbe notice served upon tbe proprietor of tbe building. That grows out of inability to agree witb them as to the meaning of sec. 3315, Stats. 1898.

It is conceded as to tbe facts of this case that:

(1) Sec. 3314 made it a condition precedent of tbe right of tbe principal contractor to acquire a lien upon a building for material furnished to tbe proprietor thereof that such material shall be furnished “for or in or about tbe erection, construction, repair,” etc., “thereof.”

(2) A subcontractor can only acquire a lien, where, if tbe material were furnished by tbe principal contractor, be might do so.

(3) Tbe lien petition in either case must necessarily show that tbe materials were furnished as specified in sec. 3314.

(4) It is a condition precedent to tbe right of a subcontractor to acquire a lien that be shall have complied witb sec. 3315, as to giving notice to tbe proprietor of tbe building, and that it is essential to such notice that it contains all tbe features indicated by such section.

(5) Tbe notice given by tbe subcontractor in this case did not inform tbe proprietor of tbe purpose for which tbe material was furnished; — that it did no more than to inform him that tbe respondents sold tbe material mentioned to tbe principal contractor, and that tbe latter intended to use tbe same in or upon tbe building in question, and that tbe same was so used; and that tbe subcontractor claimed a lien upon such building under cb. 143, Stats. 1898. All of which might be true and tbe respondent, at tbe time of tbe sale of tbe mate*185rial, Rave Rad no idea wRatever as to what nse tRe pnrcRaser intended to put tRe same to, mncR less tRat tRe seller fumisRed sncR material on tRe faitR of any prospective nse thereof.

It is Reid Rere tRat sec. 3315, aforesaid, only requires tRe notice to sRow tRat tRe subcontractor fumisRed tRe principal contractor material of a lienable kind, tRe agreed price therefor, tRe amount due for tRe same and tRat tRe former claims a lien for sucR amount upon tRe building specified, under cR. 143 of tRe statutes; — tRat tRe notice is good tRougR it be entirely silent as to whether tRe materiál was fumisRed on tRe faitR of tRe building or not. I cannot agree to tRat. To me tRe statute reads plainly otherwise.

Section 3314, aforesaid, so far as material to tRe matter under discussion, reads this way:

> “Every person wRo ... as principal contractor . . . fumisRes any materials . . . for or in or about tRe erection, construction, repair,” etc., “. . . of any ■dwelling Rouse, . . . sRall Rave a lien tRereupon,” etc.

Sec. 3315, aforesaid, so far as it concerns this case, reads this way:

> “Every person wRo, as subcontractor of a principal contractor . . . furnishes any materials ... in any of tRe cases mentioned in tRe preceding section may Rave tRe lien and remedy given by this chapter if, within sixty days after . . . furnishing such materials, Re shall give notice in writing to the owner, or Ris agent, of the.property to be affected by such lien . . . setting forth that Re has been employed by such principal contractor ... to furnish or has fumisRed, *such*. . . *material,*with a statement of . ■ . . the materials furnished, the amount due therefor from such principal contractor . . . and that Re claims the lien given by this chapter.”

Is it not perfectly plain that the words *"in any of the cases mentioned in the preceding section”*refer to that part of sec. 3314 above quoted ? Again, is it not perfectly plain that the words “to furnish, or fumisRed such material” refer to the preceding words “in any of the cases,” etc., and refer thence *186to tbe aforesaid feature of sec. 3314? I cannot escape tbe conclusion tbat it is. If I am right, tben tbe true meaning” of tbe section can readily be made unmistakable by interpolating into it in place of “in tbe cases mentioned in tbe preceding section” tbe antecedent thereof, and in place of *“been employed by such principal contractor to furnish, cr has furnished such*materials” tbat which such words relate to, thus r

> “Every person who, as a subcontractor of a principal contractor . . . *furnishes any materials for or in or about the erection, construction,*etc., *"of any dwelling house ”*etc.,, “may have tbe lien given by this chapter if, within sixty days after furnishing such materials, be shall give notice in writing to tbe owner, or bis agent, of tbe property to be affected by such lien . . . setting forth tbat be has . *furnished materials for or in or about the erection, construction, repair,”*etc., *... of any dwelling house,*with a statement of tbe . . . materials furnished, tbe amount due therefor from such principal contractor . . . and' tbat be claims tbe lien given by this chapter.”

I am unable to see why my process of reasoning is not legitimate and perfectly logical and this result inevitable: the notice in this case was clearly insufficient, and tbe judgment appealed from should be reversed.