Fuller & Johnson Mfg. Co. (Limited) vs. Bartlett.

might sustain by reason of being deprived of their rights to use an invention;" and accordingly a purchaser of the patent was restrained from violating the terms of the agreement for the license. In Slemmer's Appeal, 58 Pa. St. 155, the action was brought by three of the partners against the other, who was the inventor, to compel an assignment of the patent obtained by the latter for his invention used by the firm, and made by him as a member of the firm and while engaged in the business of the firm. The trial court held that the patent belonged to the firm, and decreed accordingly. Although such decree was reversed, on the ground that the defendant, as the inventor, was the lawful owner of the patent in his own right, and the firm only entitled to a license to use the invention, yet it was held that the plaintiffs were jointly and severally entitled to such license, and the same was decreed accordingly. Such ruling seems to have been eminently just. There can be no other adequate remedy in a case like this.

The complaint is criticised mainly on the ground that it states the evidence, instead of alleging the facts. Such objection is not available on demurrer ore tenus, especially where, as here, the substance of the evidence is stated in the complaint, and then more fully proved upon the trial.

By the Court.- The judgment of the circuit court is reversed, and the cause is remanded with directions to render judgment in favor of the plaintiff and against the defendant to the effect that the latter execute and deliver to the former a license to manufacture machines embodying the invention in question at its present works, perpetually, and to sell the same anywhere in the market, free and clear from any and all liability for any fee, royalty, or otherwise, for or on account of any patent which has been or may hereafter be granted for said invention; and, in case of failure to so execute such license within a time to be named,

Smith vs. The Shell Lake Lumber Co., imp.

then that such judgment stand as and for such license, and to have that effect; and for any other and further proceedings deemed necessary to make such judgment effectual.

COLE, C. J., took no part.

SMITH, Respondent, vs. THE SHELL LAKE LUMBER COMPANY, imp., Appellant.

January 11-February 1, 1887.

Logs and lumber: Lien for labor: Purchaser without notice.

A lien for the amount due for labor performed in manufacturing logs into lumber cannot be enforced as against a bona fide purchaser of the lumber for value, who purchased before the filing of the claim for such lien and without notice, either actual or constructive, of the lien.

TAYLOR, J., dissents.

APPEAL from the Circuit Court for Chippewa County.

Action to enforce a lien upon certain lumber and shingles for the amount due for labor and services performed in the manufacture thereof. The facts are sufficiently stated in the opinions. The defendant The Shell Lake Lumber Company appealed from a judgment in favor of the plaintiff. For the appellant there was a brief by Marshall & Jenkins, and oral argument by Mr. Jenkins.

For the respondent there was a brief by Fayette Marsh and Clapp & Macartney, and oral argument by Mr. Clapp.

ORTON, J. In 1883 and 1884 the plaintiff, with others, performed work and labor for the defendant Eugene Smith, and on his pine logs, by manufacturing therefrom a large lot of shingles. On the 5th day of April of the same year,

Smith vs. The Shell Lake Lumber Co., imp.

1884, the plaintiff duly filed his claim for a lien on said shingles, and on the 11th day of April thereafter he brought his action against the defendant, and procured an attachment, and the attachment was duly served by levying upon said shingles, then being in the possession of the Shell Lake Lumber Company, on both sides of the side track of the railroad, and by the service of summons upon the said company. According to the stipulation of the parties and the finding of the circuit court, before the filing of said claim for a lien thereon, and without any notice or knowledge of the plaintiff's claim for a lien or of the existence of the indebtedness of the said defendant to the plaintiff on account of said work and labor, the said defendant sold and delivered a part of said shingles to one David Joyce, and the other part thereof to said Shell Lake Lumber Company, and they purchased the same of the said defendant in due course of trade, and paid the said defendant the purchase money thereof, and all of said shingles were so left in the possession of said company. These are all the facts necessary to raise the question upon which the judgment was rendered and the case is to be decided in this court; and that question is whether the lien of the plaintiff upon the shingles for his work and labor shall have preference of and be paramount to the right of the purchaser in such a case; or, in other words, whether in view of secs. 3329-3331, R. S., and the amendments thereto of 1880, 1881, and 1882, the lien of the laborer so attaches to the logs, timber, or lumber upon which he has performed labor and service, from the time such labor is performed, as to supersede the claim of a subsequent bona fide purchaser thereof for value before the filing of the claim for such lien, and having no notice or knowledge of such lien, express, implied, or constructive.

The solution of this question depends wholly upon the construction of our statute. It is a new question in this court. It was not involved in Dobbs v. Eneari, 4 Wis. 451,

Smith vs. The Shell Lake Lumber Co., imp.

although the language in respect to the lien not remaining or continuing unless the claim is filed within the time prescribed in sec. 4, ch. 120, R. S. 1849, that "no such debt for work and materials shall remain a lien upon such lands, houses, or other buildings longer than one year," etc., unless a petition or claim for the same be filed," etc., is the same as in sec. 3331, R. S., as amended, which is that "no debt or demand for such labor or service shall remain such lien unless a claim therefor in writing shall be made," etc. In the above case it is said: "The lien is created by the filing of the petition." It was not necessary to the case to have said this. The claimant had died, and an administrator had filed the lien within the year. The time had not expired for filing the claim or petition. Then why did not such filing create the lien? It is answered by the real decision: No action lies to enforce a lien in behalf of a mechanic or material-man unless the petition for the lien is filed during the life-time of the intestate or testator." That case, therefore, is not authority for holding that the mechanic in any case, or the laborer in this, has no lien until he files his claim. It is authority only that the lien does not survive the death of the mechanic or material-man unless fixed and determined by the filing of the claim or petition for it in his life-time. It is a personal privilege which he has the option to insist upon or waive.

The language of the above case was disapproved by this court as being "very strong, stronger than the exigencies of the case seemed to require," in Hall v. Hinckley, 32 Wis. 362. But in that case the court gave to the filing of the claim sufficient virtue and effect to give it preference over a prior lien, the claim for which had not been filed. There is in the opinion in that case the following not overcautious language: "A careful examination has satisfied us of the correctness of the view thus early taken [in Dobbs v. Green, 2 Wis. 228, and Dobbs v. Enearl, supra] of the

Smith vs. The Shell Lake Lumber Co., imp.

statute, and that it should be sustained." The principle recognized in that case, that as to different mechanics' liens on buildings the lien first fixed by the filing of the claim and obtaining judgment thereon should be preferred to prior liens the claims for which had not been filed, or that the filing of the claim creates the lien, was evidently intended to be restricted to such a case, and not to be extended to mortgage claims, judgments, or even the claims of purchasers which originated subsequent to the commencement of the building, although the distinction is not very clear.

In Rees v. Ludington, 13 Wis. 276, it is incidentally said, although not necessary to the decision of the case, that "the design was to give the mechanic a lien from the commencement of the building, equal in power and effect with the lien of another creditor who had obtained and docketed a judgment."

In Chapman v. Wadleigh, 33 Wis. 267, prior effect of the mechanic's lien is given over mortgages originating subsequent to the commencement of the building; and to the same effect is Lampson v. Bowen, 41 Wis. 484. In Ilewett v. Currier, 63 Wis. 386, the mechanic's lien is given preference over a purchaser subsequent to the commencement of the building. This principle may be considered the settled law of this state under the present mechanic's lien statute. The statute itself is clear and explicit as to the priority of the lien, and the date is fixed as "the commencement of the building." There can be no injustice to one whose claim originates after this open and notorious event occurs. "The commencement of the building" is as ample notice of the lien and claim of the mechanic to a subsequent purchaser or mortgagee as open, visible, and notorious possession could be of the title under it.

In Paine v. Woodworth, 15 Wis. 298, the lien of a person performing labor upon timber or lumber, given in sec. 12,