HENRY CARPENTER, et al., Plaintiff in Error, vs. WILLIAM MOSER, Defendant in Error, 1 Wis. 238

By the Court, Whitox, C. J. This is a scire facia-s, brought by the defendant in error against the plaintiff in error, to enforce a mechanic’s lien, pursuant to

section twelve of

chapter one hundred and twenty of the Revised Statutes. The plaintiff below, (Moser,) claims to be a subcontractor, having performed work and labor on a tavern house for Pettifer, who had undertaken to construct the house, in whole or in part, for Carpenter. Many exceptions were’ taken to the ruling of the judge at the trial, but as we think one of them must be decisive of the case, we do not feel called upon to pass upon the remainder.

The statute provides that “No claim of any subcontractor shall be a lien under this chapter, except so far as the owner may be indebted to the contractor at the time of giving such notice as aforesaid, of such claim, or may become indebted afterwards to him as such contractor.” It was necessary for Moser to prove at the trial, that Pettifer was the contractor; that he, (Moser,) did work for Mm on the building ; that Pettifer was indebted to Moser for such work; that he gave notice in writing, to Carpenter, that he was at work on the building, and claimed the benefit of the lien given him by the statute ; and that Carpenter was indebted to Pettifer on the contract at the time the notice was served, or became indebted to him afterwards.

It appeal's, from the bill of exceptions, that at the trial, Moser offered Pettifer as a witness, who was objected to by the defendant, on the ground of interest, but that the judge overruled the objection, and permitted him to testify. To this ruling the counsel for the defendant excepted. It appears, further, from the bill of exceptions, that the testimony of Pettifer related principally to the fact of the indebtedness of Carpenter to him. We do not see how the ruling of the’judge admitting Pettifer as a witness can be sustained. He was an interested witness.

It was for his interest to show that Carpenter was indebted to him, which was one of the facts which Moser was obliged to prove; and whatever sum Carpenter owed him on the contract, went to pay the debt, which he owed Moser for labor. He therefore had a direct interest in the event of the suit. If the indebtedness of Carpenter to him on the contract had been an admitted fact, he would have been a competent witness for Moser; as he would have been interested against the party calling him, he being interested to deny that he owed Moser anything for his labor.

But, as the case stands, we do not think he was competent. Collins vs. Ellis, 21st Wend. 397; Miner vs. Hoyt, 4th Hill, 193. For the error of the judge in permitting him to testify, the judgment must be reversed.