Baldwin v. Merrick

• Decision Date: 28 February 1876
• Citation: 1 Mo.App. 281
• Parties: GEORGE BALDWIN et al., Plaintiff in Error, v. ELLIOTT T. MERRICK, Defendant in Error.
• Court: Missouri Court of Appeals

1 Mo.App. 281

GEORGE BALDWIN et al., Plaintiff in Error,

v.ELLIOTT T. MERRICK, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1876.

A furnace not fastened down, but set upon a stand of brick-work, and which could be carried out without disturbing the ceiling, walls, or floor of the house, even though a fixture as between vendor and vendee, is not a fixture within the meaning of the mechanics' lien law.

ERROR to St. Louis Circuit Court.

Affirmed.Hills & McKeag, for plaintiffs in error, cited: Pitman v. Ross, 46 Mo. 337; Oster v. Rabeneau, 46 Mo. 595; Cohen v. Kyler, 27 Mo. 122; Rogers v. Crow, 40 Mo. 91; Bircher v. Parker, 43 Mo. 443; Blithe v. Fowle, 40 Me. 310; Main v. Schwarzwalden, 4 E. D. Smith (N. Y.); Teaffe v. Hewitt, 1 Ohio, 511.

George Denison, for defendant in error, cited: Chitty on Con. (11th Am. ed.) 499.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff sues to recover for work and labor and materials in putting a furnace into defendant's house; he also seeks to enforce a mechanic's lien against the premises described in the petition. The Circuit Court rendered a general judgment against defendant, but refused to render a special judgment against the property described. This is assigned as error, and the case is brought here by plaintiff on writ of error.

It was admitted that plaintiff is entitled to a lien if the work and material were of that character for the doing and furnishing of which a lien is given by the statute. The language of the act is: “Every mechanic or other person who shall do any work upon, or furnish any materials, fixtures, engine, boiler, or machinery for, any building, erection, or improvements upon land, or for repairing the same,” etc.

The evidence in the case was as follows:

George Baldwin testified that the furnace mentioned in the account was placed in the cellar of defendant for the purpose of consuming coal to heat the house, which is a dwelling-house. It was builded in or upon a base of brick, fire-clay, mortar, etc., all of which was let into the floor several inches, which base had been previously built for the former furnace, and this furnace was placed upon the old foundation already there, and incased with bricks and mortar built around it from the old foundation, sufficient to keep it there securely. For the purpose of placing it there it was necessary to put it in three sections, and cement each section with fire-clay. As it was put on, the furnace weighed about 1,500 pounds; the pipes, except short connection and one short pipe in the cellar, were all old pipe, and used with the old furnace, and not furnished by plaintiff, and extended from the furnace to all the rooms in the house, through the walls, and were attached to registers which were nailed to the floor. It might be lifted up by men, if they had physical force sufficient, and, if taken away, would not be missed more than an ordinary stove.

Elliott T. Merrick swore that, when the house was built, it was built generally to be heated by a furnace, and one was put there, but was burned out, and Baldwin replaced it by the one in controversy, which witness had put there to remain until it would get burned out. The house might be made habitable by using grates or stoves.

This was all the evidence in the case.

It is authoritatively declared to be the settled policy in this State to secure mechanics and material men by giving them a lien on the property they have contributed to improve or create, and in interpreting the mechanics' lien law to avoid unfriendly strictness and mere technicality. Putnam v. Ross, 46 Mo. 338. Where the law gives a lien to mechanics, laborers, and material men, that lien must not be defeated for a mere technicality,...