
    Simonsen and others, Respondents, vs. Stachlewicz and wife, imp., Appellants.
    
      May 4
    
    
      May 24, 1892.
    
    
      Estoppel: Lien of subcontractors.
    
    Statements made to the owner of a building or to his architect by sub-* contractors, to the effect that the principal contractors were perfectly good and had always paid their bills, cannot estop such subcontractors from asserting their lien on the building for materials furnished, although after such statements the owner had paid the principal contractors, if he was not misled by the statements or induced thereby to make such payment.
    APPEAL from the Circuit Court for MilwauJcee County.
    Action to foreclose a subcontractors’ lien upon the premises of the defendant Stachlewicz for lumber sold and delivered to the principal contractors and used in the erection of a building upon said premises. It was proven that there was due the plaintiffs from the principal contractors §267.23, and that due notice of the claim for a subcontractors’ lien was served upon the owner. It was also proven that Stachlewicz had paid the principal contractors, before notice of the subcontractor’s alleged lien, the entire contract price, except §19.73, which last-named sum was tendered to plaintiffs before action brought.
    Phe defense relied upon was an alleged estoppel in pais, consisting of statements alleged to have been made by the plaintiffs and their bookkeeper, upon which it is alleged the defendant acted in paying the contractors. As to this alleged estoppel the circuit court found the facts to be as follows: Prior to the payment to the principal contractors of the $800 upon the contract, Stachlewicz called at plaintiffs’ office in their absence, and asked their bookkeeper if plaintiffs were satisfied with the principal contractors, and the bookkeeper said that the contractors had dealt with plaintiffs for several years, and always paid when they got. the money, and the plaintiffs always considered them good; that the superintending architect of the building, before giving the principal contractors, an estimate for said payment of $800, asked the plaintiff Simonsen if the contractors were correct in their payments, and if they were all right, if they paid their lumber bills, and if they were satisfied with them, to which Simonsen answered, “ They are just as good as the sun under the sky; they have always paid their bills; the plaintiffs consider them perfectly good payment,” — of which statements the superintendent informed the owner; that all of such statements were made in good faith without intent to mislead or deceive, and that the owner was not induced or misled by any of said statements to make the payments thereafter made to the contractors.
    Judgment of foreclosure of their lien for the full amount due. them was rendered by the circuit court, from which Stachlewiez and wife appeal.
    The cause was submitted for the appellants on the brief of J. M. Glarhe, and for the respondents on that of Francis J. Bor char dt, attorney, and Jared Thompson, Jr., of counsel.
   WiNslow, J.

Accepting the findings of the circuit court as settling the disputed questions of fact in this action, the simple question is presented as to whether the plaintiffs are estopped from asserting their lien upon the defendants’ premises. It is -elementary that an estoppel in pais arises only when the act or conduct relied on has induced a change of position in accordance with the real or apparent intention of the party against whom it is alleged; in other words, the act or conduct of the one party must have been acted upon by the other. Conceding that the statements of the bookkeeper or Simonsen were statements of fact upon which in a proper case an estoppel could be based, the circuit court has found that they did not mislead the defendants nor induce them to make the payment to the principal contractors. This finding is in accordance with the evidence, and it takes from the case a vital and essential fact without which there can be no estoppel.

By the Court.— Judgment affirmed.'  