#### Lang, Respondent, vs. Menasha Paper Company, Appellant.

*March 26*—

September *8, 1903.*

*Mechantes’ liens: Filing of claim: Duty of cleric: Payment of fees: Contracts: Reasonable time for performance.*

1. A claim for a mechanic's lien is “filed,” in legal contemplation, when presented to the clerk to he filed, and retained hy him as such clerk.

2. Although the clerk may, under sec. 748, Stats. 1898, require his fees for filing such claim to he paid in advance, if such payment is not made nor requested when the claim is presented for filing it is his duty, nevertheless, to place his file mark upon the claim and docket it; and his failure to perform that duty will not prevent the filing from being effectual.

3. Where a building contract fixes no time for the completion of the work, a reasonable time is to be regarded as being within the contemplation of the parties; and what is a reasonable time depends upon all the circumstances of the particular case.

Appeal from a judgment of tbe circuit court for Gates county: JoiiN K. Palish, Circuit Judge.

*Affirmed.*

This action was commenced May 27, 1902, to enforce a lien for labor and materials furnished to the defendant in the excavation for, and construction of, the foundation walls and foundation for a pulp mill, between October 16, 1901, and March 1, 1902, pursuant to an express contract in writing *2made by tbe plaintiff and tbe secretary of tbe defendant, October 16,1901, as follows: “October 16, 1901. It is agreed between *B. A. Lang*and M. II. Ballou that *B. A. Lang*build a foundation according to plans submitted, including floors for pit, for tbe sum of $8,000. [Signed] R. A. LaNG. M. IT. Ballou” — wbicb agreement was subsequently modified by parol, whereby tbe plaintiff undertook and agreed, in consideration of an additional payment of $500, to excavate one foot deeper than shown by such plans, and to add one foot to such foundation walls. Tbe complaint alleges tbe making of such contract; that no part thereof bad been paid, except $3,500; that there was still due tbe plaintiff thereon $5,000, with interest from March 1, 1902; and that tbe plaintiff’s claim therefor bad been filed with the clerk of tbe circuit court May 23, 1902.

Tbe defendant answered to tbe effect that tbe plaintiff ought reasonably to have completed tbe work on or before December 15, 1901; that tbe plaintiff failed and neglected to perform tbe contract with all reasonable dispatch, and did not complete it until March 1, 1902, to tbe defendant’s great damage; and alleges such failure and neglect by way of counterclaim, and alleges that its expenses and loss in consequence thereof was at least $84 per day, amounting, in all, to $5,208, and asked that tbe same be offset as a counterclaim against any sum due from the defendant to tbe plaintiff on tbe contract, and for judgment in its favor for tbe balance.

The plaintiff replied to such counterclaim, and alleges, among other things, in effect, that there was no provision in tbe contract as to when it should be completed; that tbe plaintiff commenced the performance of the work immediately after tbe contract was made; that such work was prosecuted with all reasonable diligence, and completed within a reasonable time; that defendant made payments on such contracts from time to time with full knowledge of all the facts and the progress being made, and on completion ac*3cepted the same and bas ever since used the same for tbe purposes for which it was erected; that on or about January 1, 1902, the defendant refused to make further advances or pay for the work then completed, and then for the first time claimed that the work was not being prosecuted as rapidly as desirable, and claimed damages on account of the delay; that the plaintiff replied that such failure to make advances and payments as agreed would necessarily delay completion of the work; that the plaintiff informed' the defendant that he would only perform with the express understanding and agreement that full contract price would be paid for performance, without any deduction for pretended damages by reason of delay; that the defendant thereupon directed the plaintiff to proceed with the work, and thereafter made payments ; and the plaintiff claimed that, by reason of the facts alleged, the defendant was estopped from claiming damages by reason of such delay.

At the close of the trial the court found, in effect, (1) that all the allegations of the complaint were true; (2) that October 16, 1901, the parties entered into the written contract mentioned: (3) that the contract was subsequently modified, as stated; (4) that the plaintiff fully performed all the,conditions of such agreements; that by reason of the peculiar conditions of the soil necessary to be handled in the excavation of such additional foot, the plaintiff was unable to complete such work within the time in which both parties expected that the work would be completed at the time of making the original contract; (5) that prior to January 1, 1902, the defendant made claim against the plaintiff for damages because of such delay; that on that day the plaintiff notified the defendant that if he proceeded further with the performance of the contract, it would be with the understanding and agreement that no claim for damages should be made; that thereafter the defendant continued to direct the plaintiff to prosecute such work as vigorously as possible, and thereafter, *4and on January 30, 1902, paid to tbe plaintiff on the contract $2,000; (6) that the plaintiff performed the contracts, and completed the same within a reasonable time from the making thereof; (7) that May 22, 1902, the plaintiff duly filed his claim for lien with the clerk of the circuit court; that the same was not docketed until June 21, 1902; that the fees of the clerk were paid by the plaintiff before the trial of this action; that no demand was made therefor by the clerk; (8) that the first work done and materials furnished under the terms of the contract by the plaintiff was October 23, 1901, and that the date of the last charge for such work, labor, and materials was March 5, 1902; (9) that the defendant paid to the. plaintiff on the contracts $3,500, as stated, and there still remains due and unpaid thereon $5,000, with interest thereon from March 5, 1902, and that the same is a lien on the premises mentioned; (10) that the premises described belong to the defendant, and are not within the limits of any incorporated village or city, and do not exceed forty acres of land; (11) that the allegation in the counterclaim that the plaintiff did not push and prosecute the work'in the contracts, as agreed, is untrue; (12) that the allegation in the counterclaim that the work could reasonably have been completed on or before December 15, 1901, is untrue; (13) that the allegations in the counterclaim to the-effect that the defendant sustained damage because of failure-on the part of the plaintiff to complete his contracts within a reasonable time is untrue; (14) that the allegations in the reply to the counterclaim are true.

And as conclusions of law the court found, in effect, that, the defendant is not entitled to set off as against the contract price for the work and labor performed and materials furnished by the plaintiff any sum on account of any damages claimed by reason of the facts set forth in the counterclaim; that the plaintiff is entitled to recover of the defendant $5,000, with interest thereon from March 5, 1902, amount*5ing, in the aggregate, to $5,104.17, with costs and disburse--ments to be taxed, and a judgment directing that the interest of the defendant in the premises described at the time of the commencement of said work and the furnishing of said materials, to wit, October 16, 1901, or any person claiming under it since that time, or so much thereof as should be necessary, be sold to satisfy the amount of such lien and costs. Erom the judgment entered thereon accordingly the defendant appeals.

*Silas*Bullard, for the appellant.

For the respondent there was a brief by Frawley, *Bundy &*Wilcox, and oral argument by *O. T. Bundy.*

Cassoday, C. J.

It is claimed that the plaintiff is not entitled to a judgment for a lien in this action, for the reason that he failed to file his claim for a lien, as prescribed by the statute, until after the commencement of the action. Sec. 3321, Stats. 1898. That section authorizes “any person haying” filed a claim as prescribed by the previous sections to “foreclose the same by action.” Such filing of the claim is manifestly a condition precedent to the right to commence such foreclosure action. This is virtually conceded by counsel for the plaintiff. It is claimed, however, that it was so filed before the commencement of this action. It appears and is undisputed that a claim in due form, as required by the statute, duly signed by the attorneys for the plaintiff and petitioner, was sent to the clerk of the circuit court, with direction to file the same and send his bill therefor to such attorneys; that May 22, 1902, the clerk received such claim, and acknowledged the receipt thereof, as requested, by letter addressed to such attorneys, dated on the day and year last mentioned, and stating therein, in effect, that such “claim for a lien in favor of *Robert A. Lang v. Menasha Paper Company”*had been “duly received for filing,” and that the fee therefor was thirty-five cents; that the clerk made no demand *6for tbe payment of sucb fees, and tbe same were not paid until June 21, 1902; that sucb claim for a lien remained in tbe office of tbe clerk from, May 22, 1902, to tbe trial of tbe cause, July 10, 1902, but was not docketed by tbe clerk until June 21, 1902. Tbe statute requires tbe clerk to docket “eacb claim for lien filed witb bim immediately upon its filing.” Sec. 3319, Stats. 1898. In the language of our late Brother PiNNEY :■

> “Tbe statute provides for both *filing*and docketing tbe claim, and these are entirely different things. Tbe law requires tbe *party*to file bis claim for a lien, and tbe *clerk*is to docket it.” *Goodman v.*Baerlocher, 88 Wis. 298, 60 N. W. 418.

Here tbe plaintiff delivered bis claim to the clerk to be filed in bis office. It was for tbe clerk to> put bis file mark upon it and to make tbe docket entries. Neither of these things could be done by tbe plaintiff, and tbe improper failure of tbe clerk to do them did not prevent tbe filing from being effectual. Id.; *Bailey v.*Costello, 94 Wis. 87, 91, 68 N. W. 663; *State ex rel. Kaltenbach v.*Shiel, 114 Wis. 255, 90 N. W. 112, and cases there cited. In legal contemplation, tbe claim was filed when it was presented to tbe clerk to be filed, and retained by him as sucb clerk. Id. True, tbe statute authorized tbe clerk to “require bis fees” for filing sucb claim “to be paid in advance.” Sec. 748, Stats. 1898. But be made no sucb requirement; and, in tbe absence of sucb requirement, bis duty was to put bis file mark upon tbe claim and docket tbe same. We must bold that tbe claim was filed May 22, 1902, within tbe meaning of tbe statutes.

2. It is conceded that tbe time for tbe performance of tbe contracts on tbe part of tbe plaintiff was not fixed or mentioned therein, but was left open and indefinite. It is, well settled that when no time is mentioned in an agreement for tbe performance thereof, a reasonable time is to be regarded as being within tbe contemplation of tbe parties. *Waterman*
      *7
      *v.*Dutton, 6 Wis. 265; *Nudd v. Wells,*11 Wis. 407; *Inter-Ocean T. Co. v.*Sheriffs, 54 Wis. 202, 11 N. W. 480; *Boyington v. Sweeney,*77 Wis. 55, 65, 45 N. W. 938, 941, and cases there cited. As stated by Mr. Justice Taylor in the case last cited: “What will in the particular case be a reasonable time depends upon the nature of the act to be done, the nature of the contract, and all the circumstances relating to the samein other words, it is largely a question of fact. The facts found by the trial court in the case at bar are amply supported by the evidence, and they fully justify the conclusions reached by that court.

*By the Court.*— The judgment of the circuit court is affirmed.

SiebecKer, J., took no part.