Banner Iron Works v. Ætna Iron Works

• Decision Date: 02 November 1909
• Citation: 143 Mo. App. 1,122 S.W. 762
• Court: Missouri Court of Appeals
• Parties: BANNER IRON WORKS v. ÆTNA IRON WORKS et al.

122 S.W. 762

143 Mo. App. 1

BANNER IRON WORKS v. ÆTNA IRON WORKS et al.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

Rehearing Denied November 17, 1909.

1. MECHANICS' LIENS (§ 32) — LIENABLE "MATERIAL" OR "MACHINERY."

Iron castings from 10 to 24 feet in length, known as "sill castings or channels," were furnished to a tobacco company with the necessary bolts for use in its factories, to support tobacco presses. Most of them were used for supporting presses or tables connected therewith, without being fastened to the floor and without being put under all the presses. Some were used for other purposes, such as skids, and "dunnage"; that is, were put under goods to raise them above the floor. Those under presses and tables could be readily removed, and were in fact taken from one building to another. There was no proof that they were customarily thus placed in tobacco factories, or were in any way necessary to carry on the work, or that it could not be done as well without them. Held, that the castings were not "material" or "machinery," within Rev. St. 1899, § 4203 (Ann. St. 1906, p. 2277), giving a lien to a person furnishing the same for a building.

2. MECHANICS' LIENS (§ 32) — LIENABLE MATERIAL OR MACHINERY.

No material or machinery furnished for use in a factory is lienable except such as becomes part of the realty.

3. FIXTURES (§ 7)—MODE AND SUFFICIENCY OF ANNEXATION.

Whether an article became a fixture is not determinable altogether, or even principally, by the mode of its attachment, and whether that is slight or strong, or whether the article can be removed readily without damage to the freehold, though these circumstances are to be considered.

4. FIXTURES (§ 4)—INTENT IN MAKING ANNEXATION.

The principal criterion for determining whether an article became a fixture is the owner's intention in putting the material in or on the land or building—whether his purpose was to make it permanently a part thereof.

5. FIXTURES (§ 4)—INTENT IN MAKING ANNEXATION.

If the owner of the land or building purposed in putting an article in or on the same to make it permanently a part thereof, it will usually be treated as a fixture and lienable, though it is fastened only slightly, and may be displaced without injuring the freehold.

6. FIXTURES (§ 4)—INTENT IN MAKING ANNEXATION.

In case of machinery and other articles furnished to a factory, an important circumstance in ascertaining the intention of the proprietor to make it permanently a part of the building is the adaptability of the article or machine to the work or business of the place, and if the thing furnished was necessary thereto, or to the purpose for which the building was designed and used, or was a convenient accessory or commonly employed, in connection with such business, his intention to annex it permanently may be inferred.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Suit by the Banner Iron Works against the Ætna Iron Works and others. From a judgment for defendants, plaintiff appeals. Affirmed.

L. Frank Ottofy, for appellant. Dalton & Harris, for respondents.

GOODE, J.

Plaintiff seeks to enforce a lien against a parcel of ground in the city of St. Louis and the six-story building on it, both belonging to the Christian Peper Tobacco Company, for material furnished to be used in the building. This material consisted of iron castings, denominated indifferently "sill castings or channels," and as "long and short sills or channels." The long ones were 23 or 24 feet in length, and the short ones 10 feet or more. The amount of the bill for which a lien is asked is $190.66. The Christian Paper Tobacco Company owned several buildings in the city of St. Louis, and, among others, one on the west side of Main street between Morgan street and Lucas avenue. Said company manufactured tobacco in these buildings, and in carrying on that business used machines for pressing the tobacco. The pressing machines rested on a surface of copper which had been laid over wooden floors. In 1905 it ordered of the Ætna Iron Works some cast-iron sills or channels and the necessary bolts to be used for supports under the tobacco presses. The Ætna Iron Works arranged with plaintiff, the Banner Iron Works, to cast these "channels," as they are more frequently styled, and send them to the factory of the Ætna Iron Works, where holes were drilled in them, and they were "trimmed up," painted, and otherwise adapted for use by the Peper Company. While the channels were in process of casting, the Banner Iron Works learned the Ætna Iron Works was "slow pay," and, before plaintiff would deliver them, it ascertained to what company the Ætna Company had agreed to furnish the channels, though it does not appear the particular building in which they were to be used was ascertained. Some 16 of the channels were used as supports under the presses,...