#### Segelke *&*Kohlhaus Manufacturing Company, Appellant, vs. Hulberg and another, Respondents.

*September 22*

October *13, 1896.*

*Amendment of pleading: Discretion: Liens.*

In an action to foreclose a subcontractor’s lien for building materials, the refusal to allow the complaint to be amended so as to allege that, before the materials were furnished, the owner of the building expressly promised to pay for them,— which would virtually change the action into one to foreclose a principal contractor’s lien after the time within which the claim for such a lien could have been filed, — is *held*not an abuse of discretion.

Appeal from an order of the circuit court for La Crosse county: O. B. Wyman, Circuit Judge.

*Affirmed.*

This action was originally brought to enforce a subcontractor’s lien for building materials alleged to have been furnished to *Ole*Larson, as principal contractor, between *107June 22, 1893, and November 22, 1893, to be used, and in fact used, in the erection of a building for defendant *Hul-berg,*on certain real estate owned by said *Hulberg.*The original complaint alleged the giving notice by the plaintiff to *Hulberg*of its claim for lien, under R. S. sec. 3315, within due time, and the filing of a claim for lien, May 16, 1894, and demanded judgment of foreclosure and sale. This complaint was served with the summons, October 8,1894. The defendant *Hulberg*appeared, and denied all the allegations of the complaint except the allegation of ownership of the premises and the allegation of corporate character of the plaintiff.

In January, 1895; the plaintiff made a motion, based on affidavits, for leave to amend the claim for lien and the complaint, by adding a certain adjoining lot to the description of the real estate, and by adding an allegation to the complaint alleging that the defendant *Hulberg*made an express promise to pay for the materials before they were furnished. The affidavits in support of the motion tended to show that *Hulberg*promised to pay for the building materials before they were furnished, and that the reason why the claim for lien and the complaint charged only a subcontractor’s lien was on account of a misunderstanding between the bookkeeper of the plaintiff and the plaintiff’s attorney. Affidavits were filed by *Hulberg*in opposition, expressly denying any agreement on his part to pay for the materials, and showing that the defendant *Ole Larson*had become insane since completing the building in question, and was still in that condition. The court allowed the amendment as to the description of the premises, but denied the proposed amendment, alleging' an express promise on the part of *Hulberg*to pay for the materials. From this denial the plaintiff appealed.

For the appellant there was a brief by *James S. Miller**108and *Wm. S. Burroughs,*and oral argument by *Mr. Burroughs.*

For the respondents there was a brief by *Higbee & Bunge,*and oral argument by *E. C. Higbee.*

Winslow, J.

The amendment which the court refused to-grant was an amendment virtually changing the action from an aption to foreclose a subcontractor’s lien into an action to foreclose a principal contractor’s lien, after the expiration of the time in which, it could have filed a claim for a lien as principal contractor. An application to amend the pleadings in a case like the present is addressed to the sound discretion of the court, and the order made on such motion will not be reversed “ unless there is a gross abuse of discretion, or a violation of some well-settled rule of law, or the court proceeded upon a mistaken view of the law.” *Phœnix M. L. Ins. Co. v. Walrath,*53 Wis. 669. Under the circumstances of this case, we discover no abuse of discretion in refusing to'allow the amendment; and it does not appear that the circuit court acted under a mistaken view of the law, or violated any well-settled rule of law in making the ruling in question.

*By the*Cotort.— Order affirmed.