Crane Co. v. Epworth Hotel Construction & Real Estate Co.

• Decision Date: 11 December 1906
• Citation: 98 S.W. 795,121 Mo.App. 209
• Parties: CRANE COMPANY, Respondent, v. EPWORTH HOTEL CONSTRUCTION & REAL ESTATE COMPANY, Defendant, THE TRUST COMPANY OF ST. LOUIS COUNTY, and EDWARD WILKE, Appellants
• Court: Missouri Court of Appeals

98 S.W. 795

121 Mo.App. 209

CRANE COMPANY, Respondent, v. EPWORTH HOTEL CONSTRUCTION & REAL ESTATE COMPANY, Defendant, THE TRUST COMPANY OF ST. LOUIS COUNTY, and EDWARD WILKE, Appellants

Court of Appeals of Missouri, St. Louis

December 11, 1906

Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.

AFFIRMED.

Judgment affirmed.

T. K Skinker for appellant.

(1) The apparatus sold to the hotel company do not entitle the plaintiff to a mechanic's lien; (1) because there is no such attachment to the freehold as makes them fixtures; (2) because there is no evidence of intention that they should become permanently attached to the freehold. Rogers v Crow, 40 Mo. 91; Electric Co. v. Gottlieb, 112 Mo.App. 226; Graves v. Pierce, 53 Mo. 423; Richardson v. Koch, 81 Mo. 264; Marshall v. The Bank, 76 Mo.App. 92; Sosman v. Conlon, 56 Mo.App. 25; Baldwin v. Merrick, 1 Mo.App. 281; Goodin v. Elleardsville Hall Assn., 5 Mo.App. 289; Boston Furnace Co. v. Dimock, 158 Mass. 552; Press Brick & Machine Co. v. Brick & Quarry Co., 151 Mo. 501; Hooven v. John Featherston's Sons, 111 F. 81; Voorhis v. Freeman, 2 Watts & S. 116; St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo.App. 315; Bank v. North, 160 Pa. 303. (2) The account filed for lien was improperly admitted in evidence because the ownership of the property sought to be charged was not positively sworn to. R. S. 1899, sec. 4207; State v. Headrick, 149 Mo. 396; Ackerman v. Green, 107 Mo.App. 341; Mowry v. Sanborn, 65 N.Y. 581; Barnett v. Clooney, 68 Mo.App. 146; Nordine v. Knutson, 62 Minn. 264; Iron Roof & C. Co. v. Thacher, 87 Ala. 458; Grey v. Vorhis, 15 Hun 612; Dorman v. Crozier, 14 Kan. 224; Peck v. Chambers, 44 W.Va. 270; State v. Hayward, 83 Mo. 299; Forbes v. Hyde, 31 Cal. 342; Feikert v. Wilson, 38 Minn. 341; Sydner v. Tatman, 6 Tex. 189; Bank v. Alberger, 78 N.Y. 252; Greene v. Tripp, 11 R. I. 424; Neal v. Gordon, 60 Ga. 112; Denfre v. Isenach, 9 Ga. 598; Dyer v. Flint, 21 Ill. 80; Archer v. Claflan, 31 Ill. 306; Jackson v. Burke, 4 Heisk, 610; Evarts v. Becker, 8 Paige, 506; Dunlevy v. Schartz, 17 Ohio St. 640; Garner v. White, 23 Ohio St. 192; Wilson v. Arnold, 5 Mich. 98; R. S. 1899, section 371; Bray v. McClury, 55 Mo. 128; Burnett v. McCluey, 92 Mo. 230; R. S. U.S., sec. 5278; R. S. 1899, p. 2460; Ex parte Smith, 3 McLean 120; Ex parte Spears, 88 Cal. 650; Armstrong v. Sanford, 7 Minn. 49; Campbell v. Morrison, 7 Paige 157, 160; Rateau v. Bernard, 12 How. Pr. 464; Roome v. Webb, 3 How. Pr. 327; Adamson v. Wood, 5 Blackf. 449; Hitchcock v. Herzer, 90 Ill. 543; Brown v. Cowee, 2 Douglas (Mich.) 432; Jenkins v. Telegraph Co. (Cal.), 31 P. 570; Machine Co. v. Hayes (Kan.), 53 P. 70; Clarke v. Bank, 57 Neb. 314; Ex parte Bank, 7 Hill 177; Dennis v. Coker, 34 Ala. 611; Pickel v. Ezzell, 27 Ala. 623; Heffron v. Rice, 40 Ill.App. 244, 254; Tailoring Co. v. Belding, 40 Ill.App. 326; 3 Daniel's Chancery Practice, 1939; Finley v. West, 51 Mo.App. 571; Philips on Mechanics' Liens, section 366a; Laswell v. Church, 46 Mo. 279; Steamboat Osprey v. Jenkins, 9 Mo. 635, 643; Campbell v. Morrison, 7 Paige 160.

Nagel & Kirby, and Trauman P. Young for respondent.

(1) The articles on account of which a lien was sustained in favor of the plaintiff are such as may become fixtures by attachment to the realty and such as will sustain a mechanic's lien if so attached and the method of attachment shown in evidence constitutes them a part of the realty. Goodwin v. Ellardsville Hall Assn., 5 Mo.App. 289; Sosman v. Conlon, 57 Mo.App. 25; Cooke v. McNeil, 49 Mo.App. 81; O'Brien v. Hanson, 9 Mo.App. 945; Brick Co. v. Gratiot, 151 Mo. 501; Electric Co. v. Rolla, 75 Mo.App. 622; Radiator Co. v. Carroll, 72 Mo.App. 315; Heidegger et al v. Milling Co., 16 Mo.App. 327; Riley v. Hudson, 62 Mo. 383; Spruhen v. Stout, 52 Wis. 517; Windmill Co. v. Baker, 49 Kan. 434; Forbes v. Electric Co., 19 Ore. 61; Short v. Miller, 120 Pa. 470; Harris v. Schultz, 64 Ia. 539; Derrickson v. Edwards, 29 N. J. Law 468; Hughes v. Lambertville, 53 N.J.Eq. 435; Grosz v. Jackson, 6 Daly (N. Y.) 463; Ward v. Kilpatrick, 85 N.Y. 513; Grewor v. Alloway, 3 Tenn. Chan. 584; Halley v. Alloway, 78 Tenn. 523; Shaper v. Bibb, 71 Md. 145; Dimmick v. Cook Co., 115 Pa. 573; Light Co. v. Gill, 14 Pa. Cr. Ct. R. 6; Jerachi v. Philharmonic Society, 79 Pa. 403; Carey v. McCarty, 50 Pa. 744; Lehmer v. Horton, 93 N.W. 964; Scranivin & Porter v. Mineral Water Co., 25 R. I. 318; Williams v. Powell, 78 P. 725, 145 Cal. 259. (2) The question whether an article is a fixture or not in a mechanic's lien suit is one of fact. The trial court made a full and complete finding as to the facts and this finding is conclusive here. Williams v. Porter, 51 Mo. 441; Baumhoff v. Railway, 171 Mo. 120; City of DeSoto v. Insurance Co., 102 Mo.App. 1; Bozarth v. Legion of Honor, 93 Mo.App. 564; Ins. Co. v. Mangold, 94 Mo.App. 125; Sutler v. Raeder, 149 Mo. 297; Sinclair v. Railway, 70 Mo.App. 588; Swayze v. Bride, 34 Mo.App. 414; Hendrickson v. Grable, 157 Mo. 42. (3) The affidavit attached to the lien account was in all respects sufficient. Leisse v. Schwartz, 6 Mo.App. 415; Finley v. West, 51 Mo.App. 571; McAdow v. Sturtevant, 41 Mo.App. 220; Madden v. Paroneri Realty Co., 75 Mo.App. 363; Cahill v. Ely, 55 Mo.App. 106; Steinman v. Strimple, 29 Mo.App. 485; Bruce v. Hoos, 48 Mo.App. 165; Simmons v. Carrier, 60 Mo. 581. (4) The mechanics' lien law should be liberally construed to effect the just and beneficent purposes intended. Putnam v. Ross, 46 Mo. 337; Oster v. Rabeneau, 46 Mo. 595; DeWitt v. Smith, 63 Mo. 263; Hicks v. Scofield, 121 Mo. 381; Lumber Co. v. Clark, 172 Mo. 598.

OPINION

BLAND, P. J.

--The Epworth Hotel was erected on a parcel of ground three hundred by two hundred feet, in the county of St. Louis, near the western boundary line of the city of St. Louis. Standpipes to contain water under pressure were run up through the floors and roof of the building. Respondent, a corporation, sold defendant Epworth Hotel Construction & Real Estate Co., also a corporation, certain fire apparatus aggregating seven hundred and seventy-five dollars and eighty-five cents, of which defendant paid three hundred dollars, failing to pay the balance; respondent, within four months from the date the account accrued, filed a mechanics' lien on the building and the ground, and gave the statutory notice of its filing and in due time brought this action to foreclose the lien, making the Trust Company of St. Louis county and Edward J. Wilke defendants, for the reason one is the trustee and the other the beneficiary in a recorded and unsatisfied deed of trust on the property. The issues were tried by the court without the aid of a jury. The court, in regard to the law of fixtures, declared as follows:

"The court declares the law to be that the plaintiff is not entitled to a mechanics' lien, unless the fire apparatus described in the bill of account attached to plaintiff's petition, or some certain and definite part thereof, was attached to the said Epworth Hotel and became a fixture and a part of the realty for which a mechanics' lien is allowed by law. And the question whether or not said fire apparatus did become a fixture as aforesaid, is a question both of fact and of intention.

"And in case the court finds from the evidence that the said fire apparatus was furnished by plaintiff for the purpose of being attached, and the whole or any definite part thereof was afterwards actually attached to and became a part of the Epworth Hotel, with the intention on the part of the defendant, Epworth Hotel Construction & Real Estate Company, that such fire apparatus should be and become a permanent attachment and fixture to the said Epworth Hotel, and a permanent appurtenance thereto and part thereof, then the court should find a judgment sustaining a lien in favor of plaintiff upon the property of the said defendant for the reasonable value of the fire apparatus so actually used and attached, less the credits to which defendant is entitled upon said account as defined in a subsequent declaration of law, with interest at six per cent per annum from the time of demand, as specified in the preceding instruction."

The court made the following finding of facts:

"The court, sitting as a jury, finds the facts to be that the plaintiff, Crane Company, sold to defendant, Epworth Hotel Construction & Real Estate Company, thirty-three outfits of fire apparatus at $ 19.25 per outfit, each outfit consisting of one section of 1 1/2 inch cotton-lined hose 75 feet in length, one 1 1/2 inch special brass hose nozzle and one No. 15 Dewey hose rack, and also three outfits at $ 46.50 per outfit, each consisting of one section 2 1/2 inch special nozzle and one No. 6 swing hose rack or reel and also twenty (for 35 cents) 1 1/2 inch rubber hose washer, and that the prices so charged were agreed upon by and between said Crane Company and the Epworth Hotel Construction & Real Estate Company and were the reasonable value of such materials and amounted in gross to the sum of $ 775.85, and the court finds that said materials were furnished by plaintiff for the original construction of and for the purpose of being attached to the Epworth Hotel and that the last delivery under said contract was made by the plaintiff on the 17th day of June, 1904.

"That of the goods so furnished thirty-two of the thirty-three outfits, consisting of Dewey hose racks equipped with 1 1/2 inch hose and nozzles, together with twenty washers, were shortly after delivery attached to the Epworth Hotel with the intention on the part of the Epworth Hotel Construction & Real Estate Company, that they should become a part of and a permanent appurtenance and fixture to the said Epworth Hotel.

"And the court finds that the...