West Allis Lumber Co. v. Wiesenthal

Wisconsin Supreme Court
West Allis Lumber Co. v. Wiesenthal, 141 Wis. 460 (Wis. 1910)
124 N.W. 498; 1910 Wisc. LEXIS 44
Maeshall

West Allis Lumber Co. v. Wiesenthal

Opinion of the Court

Maeshall, J.

Tbe subcontractor’s notice to tbe proprietor did not, witb commendable fulness, comply witb the requirement of sec. 3315, Stats. (1898), as to stating tbe ■amount due from tbe principal contractor; but it did comply therewith substantially. There was no difficulty in determining therefrom and the statement, made a part of it, tbe ■exact amount claimed to be due. . That was sufficient. Such •compliance satisfied tbe statute. Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136; Chandler L. Co. v. Fehlau, 137 Wis. 204, 117 N. W. 1057.

Tbe learned circuit court committed fatal error in ruling that tbe owner of tbe building could not reduce tbe claim of tbe subcontractor by offsetting damages for breach of bis contract witb tbe principal contractor, pleaded in tbe form of a counterclaim. Tbe proposition involved is ruled by the statute itself (sec. 3315, Stats. 1898), and by Seeman v. Biemann, 108 Wis. 365, 376, 84 N. W. 490. It was said by tbe court in tbe Beeman Case, that in an action to enforce a subcontractor’s lien under tbe statutes of this state, tbe owner •of tbe property affected is entitled to tbe benefit of all tbe *463•defenses against tbe claim possessed by tbe principal contractor ; referring to tbe statute. ■ -Tbe term “defenses” as there used includes all claims by way of setoff which tbe principal contractor has against the subcontractor. True, tbe proprietor cannot obtain an affirmative judgment against the subcontractor in the right of tbe principal contractor, but he can have full benefit of tbe setoff, which is pleadable as a counterclaim. Schumacher v. Seeger, 65 Wis. 394, 27 N. W. 30. Tbe statute expressly so provides:

“In actions in courts of record a setoff claimed by tbe defendant shall be pleaded as. a counterclaim and regulated by tbe rules of pleading and practice applicable to counterclaims. . . Sec. 4264, Stats. (1898).

Tbe learned court overlooked the fact that this court derided in Seeman v. Biemann, supra, that the property owner, in a case of this sort, has all the rights of the principal contractor as to such matters as will qualify or defeat the claim ■of tbe lien claimant; and further overlooked tbe fact that iaatter of setoff is to be treated, in pleading, the same as a counterclaim; and, further, that where the facts constitute a good setoff in favor of tbe party pleading them, but do not constitute a cause of action in his favor against the complainant, the pleading setting up tbe setoff in form as a counterclaim, is not demurrable for insufficiency, although it improperly demands an affirmative judgment. Schumacher v. Seeger, supra.

By the Gourt. — Tbe judgment is reversed, and the cause remanded for further proceedings in~respect to the appellant’s claim of setoff and for judgment according as tbe facts in ■that respect and those heretofore found, may appear.

Reference

Full Case Name
West Allis Lumber Company v. Wiesenthal, and Smith-Blodgett Company
Cited By
2 cases
Status
Published
Syllabus
Liens: Notice by subcontractor: Bight of owner to setoffs: Pleading: Counterclaim. 1. Sec. 3315, Stats. (1898), as to stating, in the subcontractor’s notice, the amount due, is satisfied by such substantial compliance therewith that the person served with notice can readily determine therefrom the correct amount. 2. In an action to enforce a subcontractor’s lien, the owner of the building is entitled to the benefit of all deductions from the ''claim which the principal contractor might rightfully insist upon, including damages for failure to properly perform the subcontract. 3. In an action to enforce a subcontractor’s lien, damages for non-fulfilment of the subcontract may be claimed by the owner of the building as an offset, and pleaded as such in the form of a . counterclaim. 4. Matter of offset must, in any case, be pleaded as a counterclaim. 5. If facts pleaded as an offset in the form of a counterclaim do not constitute a cause of action in favor of the party pleading them, the pleading is not demurrable for insufficiency though relief to the extent of a judgment in favor of such party is demanded. [Syllabus by Mabshail, J.]