Opinion
No. 75-793.
Submitted on briefs December 1, 1977. —
Decided January 3, 1978.
APPEAL from a judgment of the circuit court for Waukesha county: CLAIR H. VOSS, Circuit Judge. Affirmed.
For the appellants the cause was submitted on the brief of Love, Brown, Love Phillips of Waukesha.
For the respondent the cause was submitted on the brief of Wimmer, Evans Vollmar of Waukesha.
FACTS.
Plaintiff-respondent, Erwin G. Rupp, is a self-employed carpenter. Defendants-appellants, Dale O'Connor and Paul Simon, doing business as Simon-O'Connor, owned a house located at 448 West College Avenue in Waukesha. Defendants decided to remodel the third floor attic into a one-bedroom apartment. In January, 1973, the plaintiff and the defendants orally agreed that the plaintiff would do the carpentry work for the remodeling, while the defendants would provide the materials. The plaintiff hired two helpers. The work included laying a plywood subfloor, erecting partitions, adding closets and walls, installing insulation, drywall and a suspended ceiling, setting door frames and roughing in the bathroom. After the work was completed in April, 1973, the plaintiff submitted a bill to the defendants in the amount of $3,300, charging $8.00 per hour for his services and $3.00 and $4.00 per hour for the work of his helpers. The defendants paid only $300 of the amount owed.
On July 9, 1975, the plaintiff commenced this suit to recover the balance due him under the contract. The defendants set up the affirmative defense that the action was barred by the two-year statute of limitations in sec. 893.21 (5), Stats. Trial was to the court. At the close of the plaintiff's case the defendants moved to dismiss on the ground the action was barred by the statute of limitations. The trial court denied the motion. After trial the court found that the action was "an action upon an oral contract," and therefore that it was commenced "within the time allowed by law, pursuant to the provisions of Section 893.19 (3), Wisconsin Statutes." The trial court further found that an oral contract had been entered into for the performance of carpentry services in the remodeling of the attic, that the plaintiff completed the remodeling according to the terms of the oral contract, that his services were performed in a good workmanlike manner and without objection to the quality of the work by the defendants, and concluded that $3,000 plus interest and costs were due and owing the plaintiff. Judgment was entered accordingly. The defendants appeal.
The sole question asked by this appeal is whether the two-year statute of limitations or the six-year statute of limitations here applies.
Sec. 893.21 (5), Stats., provides: "Within 2 years: (5) Any action to recover unpaid salary, wages or other compensation for personal services, except fees for professional services."
Sec. 893.19 (3), Stats., provides: "Within 6 years: (3) An action upon any other contract, obligation or liability, express or implied. . . ."
The two-year statute of limitations applies to any action to recover "unpaid salary, wages or other compensation for personal services, except fees for professional services." In arguing that the two-year statute applies to this action, the defendants rely upon Estate of Dobrecevich. There this court held that where the claimant had built a house for the decedent and furnished both labor and materials, the two-year statute of limitations did not apply. The defendants submit that by implication that holding means that where, as here, a contract is for labor only, a claim under such contract falls within the two-year statute. This implication is strengthened by the reference in Dobrecevich to the decision in Estate of Fredericksen, a case where a claim had been filed against an estate for board, lodging, care and laundry furnished the deceased. Because this claim included an element of personal service "intertwined" with the furnishing of food and lodging, our court concluded that the two-year statute of limitations did not apply. Without such "intertwining," defendants argue, the result in Fredericksen would have been different, and it appears that it would have.
Sec. 893.21 (5), Stats.
17 Wis.2d 1, 115 N.W.2d 597 (1962).
Id. at 7, 8, reviewing Estate of Fredericksen, 273 Wis. 479, 78 N.W.2d 878 (1956).
Id. at 7.
However, in a decision subsequent to both Fredericksen and Dobrecevich, the Estate of Javornik Case,this court made clear that the two-year statute of limitations applies to a claim for ". . . human labor such as is commonly rendered in return for a salary or a wage in the case of an employee and for `other compensation' in the case of an independent contractor or one not in an employee relationship." The rule for determining whether the two-year statute should apply to a particular claim for "personal services" is as follows:
35 Wis.2d 741, 151 N.W.2d 721 (1967).
Id. at 749.
"Such human labor must be in the nature of a service as distinguished from the end product or the fruit of the services. While some personal services may result in a salable article or an end product, the distinguishing feature of personal services for the purpose of this section [sec. 893.21 (5), the two-year statute of limitations] is whether the human labor itself is sought and is the object of the compensation or whether the end product of the service is purchased."
Id. at 749.
This rule has been repeatedly followed since. In Younger v. Rosenow Paper Supply Co., the court relied on the Javornik rule in holding that an action to recover an unpaid bonus is one for breach of contract not barred by the two-year statute of limitations. Similarly, in Estate of Schroeder, we relied on the Javornik rule in holding that an action to recover pension benefits was more than a claim for wages and, therefore, that the six-year statute of limitations applies. In Lorenz v. Dreske, the court applied the Javornik rule in holding that the two-year statute does not bar an action for unpaid compensation for consulting services even though the claimant, a physician, was not a professional consultant.
51 Wis.2d 619, 188 N.W.2d 507 (1971).
Id. at 627. There this court concluded: "In light of Estate of Javornik, narrowly construing the two-year statute of limitations, we are satisfied that the six-year statute of limitations, sec. 893.19 (3), applies, rather than the two-year statute of limitations, sec. 893.21 (5)."
53 Wis.2d 59, 191 N.W.2d 860 (1971).
Id. at 67.
62 Wis.2d 273, 214 N.W.2d 753 (1974). Relying on the Javornik rule as well as the other recent cases narrowly construing the two-year statute, the court in Lorenz concluded: "A broad interpretation of `professional services' is in keeping with the trend to limit those actions barred by the statute." Id. at 281.
Applying the Javornik rule to the case before us, we must consider the object of the contract. If the object was the human labor alone, the two-year statute applies. If it was the fruits of the human labor, the six-year statute applies. All of the parties testified that the purpose of the contract was to remodel the attic into an apartment. The plaintiff did not perform all of the work personally, but hired two helpers to assist. From the record it is evident that the plaintiff made recommendations as to what materials the defendants should buy and ordered some of these materials. He advised them that they would need an electrician, a plumber, and a heating man, and recommended which electrician the defendants should employ. These features of the personal services contracted for by the parties and performed by this plaintiff support the holding of the trial court that here the end product of human labor was purchased and not the human labor alone. We affirm the trial court conclusion that the two-year statute of limitations, sec. 893.21 (5), Stats., does not apply and that the six-year statute of limitations, sec. 893.19 (3), Stats., does apply.
By the Court. — Judgment affirmed.