Curtin-Clark Hardware Co. v. Churchill

• Decision Date: 24 June 1907
• Citation: 104 S.W. 476,126 Mo.App. 462
• Parties: CURTIN-CLARK HARDWARE COMPANY, Respondent, v. E. P. CHURCHILL et al., Appellants
• Court: Kansas Court of Appeals

104 S.W. 476

126 Mo.App. 462

CURTIN-CLARK HARDWARE COMPANY, Respondent, v. E. P. CHURCHILL et al., Appellants

Court of Appeals of Missouri, Kansas City

June 24, 1907

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

C. F Strop and Eugene Silverman for appellant.

(1) Every person must ascertain at his peril the title of the person with whom he is contracting and for whom he is furnishing material and labor, and in order to charge the fee it is necessary that there be a contract between the owner of the fee and some person, who, under the mechanic's lien law is called an original contractor, that the improvements are to be made and unless there is such a contract the lien must fail. Mill Co. v. Brundage, 25 Mo.App. 268; Kling v. Railroad, 4 Mo.App. 574; Horton v Railroad, 84 Mo.App. 602. (2) If there is no agreement authorizing the lessee to make repairs or improvements at the expense of the lessor, there can be no lien against the fee for improvements made by the lessee. Marble & Granite Company v. Handlan, 85 Mo.App. 313; Mills v Mathews, 7 Md. 315; Koenig v. Mueller, 39 Mo. 166; Johnson v. Dewey, 36 Cal. 623; McClintock v. Criswell, 67 Pa. St. 183; Louer v. Bandow, 43 Wis. 556; Conant v. Breckett, 112 Mass. 18, and cases cited. (3) There can be no implication of law that the lessor must pay for the improvements when by the express terms of the contract they were to be paid for by the lessee. Hoolan v. Bailey, 30 Mo.App. 585; Clarke v. Kane, 37 Mo.App. 258; Mansur v. Murphy, 49 Mo.App. 266; Skeen v. Johnson, 55 Mo. 24 Holmes v. Board, 81 Mo. 137.

Vories & Vories and Willard P. Hall for respondent.

(1) The opinion of this court in Dougherty-Moss Lumber Company v. Churchill, 114 Mo.App. 578, was right, and should be adhered to. (2) The opinion of this court in the Dougherty-Moss case covers the present case fully and controls and governs it. (3) Plaintiff was entitled to a lien upon the fee because the Center Building Company not only contracted for the construction of the improvements but also agreed to contribute toward defraying the cost thereof. Kernen v. Walton, 11 Wash. 120; Hall v. Parker, 96 Pa. St. 109; Berclay v. Wainright, 86 Pa. St. 191.

OPINION

JOHNSON, J.

--Action to enforce a mechanic's lien. The parties defendant, premises and transaction are the same as those before us in the case of Dougherty-Moss Lumber Co. v. Churchill, 114 Mo.App. 578, 90 S.W. 405, and we refer to the opinion in that case for a statement of facts which appear in the present record. Additional facts are before us which the appealing defendant argues serve to differentiate the two cases. They will be found in the findings of fact made by the trial court (a jury being waived by the parties) which are as follows:

"The Court, in addition to the facts stated in the agreed statement of facts, does find from the evidence that at the time the lease mentioned in evidence between the Center Building Co. and E. P. Churchill, which lease was assigned to the Lyric Theater Co. was entered into and prior thereto the premises mentioned in said lease were and had been vacant and unoccupied and that since under the terms of said lease said parts of said premises were changed from a hotel into a theater building; and rental and income has been derived by the Center Building Co. therefrom save where the tenant failed to pay the rent. That at the time said lease was entered into it was known and understood between the parties thereto that a large sum of money would necessarily be spent in making said changes and that much labor and large quantities of material were necessary therefor. It was further understood and agreed between said parties that at the expiration of said lease, or upon a forfeiture of the same for any cause set forth in the lease, all of said improvements made should immediately become the property of the Center Building Co.; and that under said lease said property must be maintained at all times as a theater, otherwise a forfeiture would result to the Center Building Company. The evidence further shows that all interests of the said E. P. Churchill and the Lyric Theater Company under said lease have been surrendered to the Center Building Company, who are now in the possession of and absolutely own said improvements provided for in said lease. . . . The court finds from the evidence that the alteration of the premises described in the petition herein, which alteration consisted in changing a portion of said premises so that the same could be used for theater purposes instead of hotel purposes, did not enhance or increase the value of the freehold. The court further finds that the cost of restoring said premises to the condition in which they were before the same were reconstructed for theater purposes would exceed the value of all the improvements, changes and alterations made by either Churchill or the Lyric Theater Company; that the total cost of the changes, alterations and improvements made by either said Churchill or the said Theater Company, or both, was less than fifteen thousand dollars; that it would cost to reconvert said building, or the portion thereof which has been altered, into its former condition, to-wit, the condition it was in before it was adapted for theater purposes would be not less than fifteen, and probably twenty thousand dollars. . . . The court further finds that the said Center Building Company at no time (except as shown by, or may be inferred from the lease between it and the said Churchill) was desirous of having said alterations and changes made, or was desirous of having the premises aforesaid converted for theater uses; that said lease was executed only after considerable negotiation, and the said Center Building Company only with reluctance consented that said changes or alterations be made; and that in the execution of said lease it was not the actual purpose of the said Center Building Company to procure an improvement to the freehold, but simply to make a lease of those portions of said premises as were converted into a theater."

On these facts the court entered judgment for plaintiff in the amount of its demand for materials furnished under contract with the lessee which were used in the making of the alterations by which the building was converted from a hotel to a theater and adjudged a lien against the freehold as well as the leasehold estate. Defendant Center Building Co., the owner of the fee appealed from this judgment and earnestly contends, first, that the views expressed in the opinion in the former case should be modified and, second, that should we continue to adhere to them, nevertheless, the freehold should not be held subject to the lien of plaintiff because of the facts, now appearing for the first time, that the owner of the fee when it entered into the contract of lease had no intention of making a contract for the benefit of its estate by means of the proposed alterations in the building and that the changes made by the lessee did not, in fact, enhance the value of that estate.

Nothing has been advanced that impairs our confidence in the soundness of the principles followed in the Dougherty case. We said in the opinion: "In effect, the lessor burdened the lessee with the obligation to make and pay for the necessary alterations. That it intended to derive substantial benefit therefrom is evidenced by the fact that instead of requiring at the end of the tenancy the restoration of the premises in the condition they were when leased, the improvements...