Frank Adam Electric Company v. Gottlieb
| Citation | 86 S.W. 901,112 Mo.App. 226 |
| Parties | FRANK ADAM ELECTRIC COMPANY, Respondent, v. GOTTLIEB et al., Appellants |
| Decision Date | 18 April 1905 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Jas. R. Kinealy Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Henry A. Hamilton for appellants.
(1) A mechanic's lien cannot be established against a building by one furnishing articles unless they are such fixtures as will pass by conveyance of the freehold. The rule for determining whether an article is such a fixture within the meaning of the statute relating to mechanics' liens, is the same as that applied between vendor and vendee, mortgagor and mortgagee, heir and personal representative. St Louis Radiator Co. v. Carroll, 72 Mo.App. 315. (2) Gas fixtures do not become part of the realty, even though they are affixed to the building by the owner thereof. Rogers v. Crow, 40 Mo. 91; McKeage v. Hanover Fire Ins Co., 81 N.Y. 38; Lawrence v. Kemp, 1 Duer (N. Y.), 363; Shaw v. Lenke, 1 Daly (N. Y.), 487; Kirchman v. Lapp, 19 N.Y.S. 831; Manning v. Ogden, 70 Hun 399; Cosgrove v. Troescher, 70 N.Y.S. 764; New York Life Ins. Co. v. Allison, 107 F. 179; Vaughen v. Haldeman, 33 Pa. St. 522; Towne v. Fiske, 127 Mass. 125; Chapman v. Union Mut. Life Ins. Co., 4 Ill.App. 29; Copehart v. Foster, 61 Minn. 132; Montague v. Dent, 10 Rich, (Law) 135; L'Hote & Co. v. Fulham, 51 La. Ann. 780; Hall v. Law Guaranty and Trust Society, 22 Wash. 305; 13 Am. and Eng. Enc. of Law (2nd Ed.), p. 666; Ewell on Fixtures, p. 299; Tyler on Fixtures, p. 395, also p. 401. (3) Chandeliers and other gas fixtures cannot be the subject of a mechanic's lien because they do not pass by sale of the freehold. Jarechi v. Philharmonic Society, 79 Pa. St. 403; Marshall v. Kaighn, 2 Weekly Note Cas. 426; St. Louis Radiator Co. v. Carroll, 72 Mo.App. 315; Boisot on Mechanic's Liens, section 100; Phillips on Mechanic's Liens, section 178a.
Seneca N. and S. C. Taylor for respondent.
Under our Mechanic's Lien Law, undeniably gas fixtures, placed in a building with the intention that they shall remain as a part of the realty, constitute material for which the law gives the right to a mechanic's lien. McFarlane v. Foley, 60 N.E. 357; Baum v. Cover, 62 Miss. 113; Phillips on Mechanic's Liens (3 Ed.), sec. 177; Ewell on Fixtures, page 300; Electrical Supply Co. v. Electric Light and Power Co., 75 Mo.App. 622; Radiator Co. v. Carroll, 72 Mo.App. 315; Thomas v. Davis, 76 Mo. 72; Sosman v. Conlon, 57 Mo.App. 30; Cooke v. McNeil, 49 Mo.App. 81; Havens v. Fire Insurance Co., 123 Mo. 419, 27 S.W. 718; Machine Co. v. Quarry Co., 151 Mo. 501, 52 S.W. 401; Hopnell v. Bank, 150 Mass. 519; Erdman v. Moore, 32 A. (N. J.) 958; Trust & Safe Deposit Co. v. Hotel Co., 26 Weekly Law Bulletin 149; Funk v. Brigoldi, 4 Daily Rep. 359; Monte v. Barnes, 70 Law. J. K. B. 225 (English); Stack v. Eton Co., 4 Ont. Law. Rep. 335.
Action to enforce a lien. The items in controversy are gas fixtures. It is admitted the plaintiff company put the gas fixtures into the building, but the appellants contend gas fixtures are not lienable articles within the meaning of the statute giving liens for material furnished and labor done on a building. It appears to be conceded that such fixtures may be put into a house under circumstances showing an intention to make them a permanent part of the realty, in which event they are lienable articles. The exact dispute between the parties to this litigation is whether an intention of that kind fairly appears from the evidence--in other words, whether there was any competent evidence to prove it existed. The appellant says there was not, because the evidence goes no further than that the attachments were bought for use in the houses and connected with the gas pipes, which facts are argued to be insufficient to show an intention to make them part of the realty. To the contrary, the respondent contends that it was fairly inferable from the evidence that when the houses were built, the owners of the premises had the gas appliances attached as permanent parts of the freehold, or fixtures in law. The articles in question were hall and room pendants, chandeliers, brackets and globes. The Patomac Realty Company had the buildings erected--three two-story houses with four flats to each house, on three contiguous lots owned by said company in the city of St. Louis. William Gottlieb was president of the company. The plans were prepared by an architect and superintendent of construction, who testified that the contract for the erection of the houses was let to Rychliki Bros. and the houses were completed by that firm with the exception of some items not included in the contract. Among the items not included in the contract with Rychliki Bros were the gas fixtures and heating apparatus. A separate contract for the gas fixtures was let by Gottlieb to the plaintiff, the Frank Adam Electric Company, and pursuant to that contract said Electric Company put in the fixtures. Subsequently the houses and lots were sold to different purchasers who are named as defendants in this action. It was in proof that after the sale the fixtures remained in the houses and attached as before; but whether they passed with the houses as part of the consideration for the gross purchase price of the premises, or were the subject of separate bargains between the Patomac Realty Company, the original owner, and its vendees, does not appear. Nor is there anything tending to prove an intention on the part of the Patomac Realty Company when it had the lighting appliances put in, that they should constitute part of the freehold. The fixtures were attached to the gas pipes in the usual way; as, of course, they would be, whether the owner of the property designed to treat them as part of the realty or as personal chattels. In truth, this idea of "intention," though it will throw light on whether many articles are fixtures, assists but little in the present case, unaided, as it is, by facts to show a purpose regarding the future disposition of the articles was in the mind of the proprietor when the articles were ordered. Gas fixtures are not things which distinctly indicate whether or not they are designed to be permanent appurtenances. They, themselves, do not speak on the subject. If the owner of a factory puts in machinery suitable for the kind of manufacturing to be carried on, the inference is strong that he intended the machinery to constitute part of the plant and to be used permanently in connection with it. But the mere fact that the owner of a house buys gas fixtures and has them attached to the pipes, has no tendency to prove an intention on the subject one way or the other. Doubtless in such case the owner takes no thought of whether he will leave the fixtures attached to the house if he sells it, or even if he continues to occupy it. Future circumstances will control his conduct with reference to them. If he sells the premises he may dispose of the gas fixtures separately or not. And in case he continues to occupy the premises, he may use them until worn out, or detach them and substitute others in their places. Gas chandeliers are often changed into electroliers, or taken down and drop lights or table lamps used instead. Convenience and fashion dictate the course to be pursued in regard to such articles. There is a wide diversion of judicial opinion as to whether gas attachments are to be regarded as part of the realty. In these days, when families shift about so much, such articles are commonly treated as furniture, rather than fixtures. As between a vendor and a vendee, it is the declared law in this State that they are personalty and do not pass by a conveyance of the premises. This was expressly decided in Rogers v. Crow, 40 Mo. 91. The plaintiffs in that case were the vestrymen of St. Paul's Parish, a Protestant Episcopal congregation in the city of St. Louis, on whose church edifice a deed of trust had been placed and subsequently foreclosed. The defendants held title under that foreclosure sale and kept the gas attachments as constituting part of the building. The vestrymen instituted the action to recover the value of the gas fixtures and the organ in the building, alleging that those articles had been unlawfully converted by the defendants to their own use. The point was whether the organ and gas fixtures passed by the foreclosure of the deed of trust. In other words, whether they were part of the realty. The lower court decided that the gas attachments and organ were not fixtures and part of the house and did not pass with the sale under the deed of trust. As to the gas fixtures this decision was affirmed, the Supreme Court saying: "It has been uniformly held that lamps, chandeliers, candelabra, sconces, brackets and the various contrivances for lighting houses by means of candles, oils or other fluids, or gas, are not fixtures and do not form a part of the freehold so as to pass by a sale of the realty." The opinion then proceeds to review decisions approving this rule in New York, Massachusetts, South Carolina and Pennsylvania, in which it is the law to this day that gas fixtures (so-called) are not fixtures in a legal sense or part of the freehold. Counsel for the plaintiff insist that while that decision settles the rule between the vendor and the vendee of real property, it does not conclude the plaintiff's right as a materialman to a lien for putting in the lighting attachments in question. In other words, that the rule as to what is a fixture or constituent part of a house, is more favorable to lienors than to vendors. Courts give a liberal construction to lien statutes, but in construing them, must not abandon the fixed definitions and...
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