#### Ponti and others, Respondents, vs. Eckels and another, Appellants.

*May 8*

June *21, 1906.*

*Lien of subcontractor: Foreclosure: Personal judgment against owner: Service of notice of claim: Evidence: Return of officer: Building contract: Extras.*

*t.*In an action to foreclose a subcontractor's lien a personal judgment against tbe owner is erroneous in tbe absence of evidence showing bis personal liability to tbe plaintiff.

2. Tbe fact that plaintiff’s attorney or some third person was unable to find in tbe county any agent of tbe owner to whom notice of tbe lien claim could be given in compliance with sec. 3315, Stats. 1898, does not show tbe plaintiff’s inability to find such an agent, especially where it appears that tbe owner bad an agent in tbe county and that plaintiff while doing tbe work as subcontractor bad bad continual dealings with said agent in bis capacity as such.

3. Tbe notice of claim for a subcontractor’s lien is not process, and: a certificate or return signed by a deputy sheriff, to tbe effect that after diligent search in tbe county be was unable to find-tbe owner or any agent upon whom such notice could be served, has no evidentiary force.

4. Under a building contract providing that tbe architect might direct alterations only by making a written agreement with the-contractor in advance, if no such agreement was made and there was no waiver by tbe contractor a subcontractor cannot recover from tbe contractor for extra work done without tbe consent or authority of tbe latter.

Appeal from a judgment of the circuit court for Waukesha: county: James J. Dioe, Circuit Judge.

*Reversed.*

Action to foreclose mechanic’s lien. Defendant *Findley,*having taken a contract to build a house for defendant *Ech-éis*according to certain plans and specifications, sublet a contract for the mason work and materials according to said, specifications to the plaintiffs for $3,555. The plaintiffs proceeded with the work and claimed to have completed it, and defendant *Findley*went on with the construction of the rest. *27of tbe bouse according to numerous modifications of tbe design. He paid large sums of money to tbe plaintiffs and for tbe labor and material employed and purchased by them. Within sixty days after plaintiffs’ last work a notice was issued and filed in tbe office of tbe clerk of tbe circuit court for Waukesha county to tbe effect that tbe plaintiffs-would claim a subcontractors’ lien, which notice bore an indorsement signed “E. W. Delaney, Deputy Sheriff Waukesha County,”' certifying that after diligent search in Waukesha county covering about two months prior to September 1, 1903, be bad' been unable to find either defendant *Eckels*or any agent upon whom be could make service of tbe paper thereto attached. No other attempted proof of effort to find either *Echéis*or an. agent was made, except the testimony of plaintiffs’ attorney that he wrote a letter to an acquaintance at Oconomowoc, who replied that he had no knowledge of any such agent. Suit was thereafter commenced claiming a subcontractors’ lien for the balance of contract price, and extras ordered by defendant *Findley,*in the sum of $315.40, making a total claim of $1,504.07. The answer alleged payment to the plaintiffs of $3,656.40, complete failure of plaintiffs to perform their contract, and also damages from defective work in breach of the-contract by plaintiffs to the amount of $550, making a total of $4,206.40, for which, by counterclaim, judgment was demanded against the plaintiffs. *Echéis’s*answer was substantially a general denial of everything except the contract between him and *Findley.*The court found that plaintiffs-had substantially performed their contract; that they were entitled to certain extras aggregating $119.90; that defendant *Findley*had paid $3,013.78, and that there was defective-work repaired or rebuilt to the sum of $127.68, and accordingly rendered personal judgment against both *Echéis*and *Findley*for said sum of $536.44, together with costs, and that said amount be a lien upon the interest of *Echéis*in the premises described, and for enforcement of the lien in the-*28■usual form, with order for deficiency judgment. Erom that judgment both defendants appeal.

*John A. Kelly,*for the appellants.

*G. K. Armin,*for the respondents.

Dodge, *J.*

The personal judgment against the defendant *Echéis*is so obviously unwarranted and erroneous as to be ■quite inexplicable. There is no pretense either in allegation or proof of any privity between the owner and the subcontractors, or of any promise by the former to pay the latter, from which could result personal liability.

Another error assigned in the interest of defendant *Kclcels*is the failure to give notice to him or his agent of a claim to subcontractors’ lien, in compliance with sec. 3315, Stats. 1898. That statute requires that within sixty days a notice be given to the owner, or his agent, if to be found in the county, and, if neither can be found therein, by filing such notice in the office of the clerk of the circuit court of said county. Manifestly the burden of proof is upon the plaintiff claiming a lien to show the existence of a condition which justifies omission to serve the notice on the owner or his agent, and to substitute therefor a filing in the clerk’s office. The proof is overwhelming and undisputed that at all times material to this case defendant *Echéis,*who resided in Chicago, did have an agent in charge of the building and grounds on which it was situated, in the town of Oconomowoc, in Waukesha county, and that the plaintiffs knew such fact, having had continual dealings with such agent in his capacity as such while engaged in doing their work. Against this there is no evidence except that mentioned in the statement of facts, which, even if accepted as evidence, does not at all controvert either the existence of such an agent or that plaintiffs knew of him. The fact that a plaintiff’s attorney, or some third person, is unable to find any agent by no means proves the plaintiff’s inability *29when be is shown to have such knowledge as above stated. Further, there is no evidentiary force whatever to the so-called return or certificate signed by the deputy sheriff. An official certificate is evidence only by virtue of the statute, and none can be found giving such effect to a mere declaration by a deputy sheriff that he has searched for, and has not found, a, certain person; unless indeed as a part of the return upon process, and whether then or not we need not decide. The notice in question is in no sense process. It issues from no court, but is wholly *inter partes. Dusick v. Green,*118 Wis. 240, 95 N. W. 144. We must conclude, therefore, that there is no proof of a legal service of any notice of subcontractors’ lien; indeed, that the negative is overwhelmingly established; hence that plaintiffs are not entitled to any subcontractors’ lien, and judgment should have gone in favor of defendant *Echéis.*

The failure of lien, however, does not prevent recovery against the person liable for the debt. Sec. 3324, Stats. 1898. Hence we must proceed to a review of the errors assigned upon the amount adjudged in plaintiffs’ favor against *Find-ley.*After some hesitation we have reached the conclusion that we cannot say with the necessary certainty that the evidence preponderates against the court’s finding that the plaintiffs substantially performed the work contracted for, although there is very much evidence of great recklessness and insubordination and of defective workmanship. We therefore cannot set aside this finding, from which results the' right of the plaintiffs to recover the contract price, subject to such deductions and offsets as may result from the expense or damage caused to the defendant *Findley*by reason of defects, or insufficiencies in the work.

On the subject of extras, however, we find not only no evidence to support any liability of *Findley,*but evidence from both plaintiffs and defendant that none of the extras claimed. *30were performed by tibe direction or with the consent or authority of Findley, nor under any promise by him to pay therefor. Neither do we find, as in some building contracts, that *Findley*consented that the supervising architect might direct extras. The nearest approach to such a provision is that such architect may direct alterations only by making a written ■agreement with *Findley*in advance, specifying such alterations and fixing the extension of time justified thereby and the price thereof. There is no pretense that any such agreement was made with reference to any of the so-called extras claimed by the plaintiffs, nor that *Findley*in any Way waived •the contract requirement. Hence we must conclude, that the .allowance of $119.90 for extras was in defiance of all evidence.

Upon the subject of payments, after an examination of the record we are unable to discover that defendant has successfully proved any, either to the plaintiffs or upon their authority, greater than the amount allowed by the court. While it may well be that defendant’s own evidence establishes payments in much larger amount, he has failed to show any authority for a large part thereof, and has also failed to show the payment of considerable sums which the plaintiffs admit having authorized. The total of those which he shows he has paid for which he shows any authority or request by plaintiffs does not exceed the $3,013.78'allowed by the judgment.

Much the same state of evidence exists with reference to the alleged damages occasioned defendant *Findley*by the defective and unworkmanlike manner in .which plaintiffs performed the work. Either there is no evidence as to the expense necessary to remedy such defects, or there is failure of proof that defendant *Findley*has been or will be put to such expense. The amounts of which there is any reasonably clear and direct proof do not exceed the $127.68 allowed in the judgment. Hence we are unable to reverse findings of the trial court upon these subjects, and its conclusion that *Find-*
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      *■ley*is indebted to tbe plaintiffs for tbe amount adjudged must stand, except as to tbe item of $119.90 allowed for extras.

*By the Court.*— Judgment reversed, and cause remanded with directions to enter personal judgment in favor of tbe plaintiffs and against tbe defendant *A. Findley*alone for tbe .sum of $416.54, together with interest from October 7, 1903, tbe date of commencing suit; also to dismiss tbe complaint as .•against defendant *James H-. Fcleels.*