Des Moines Steel Co. v. Hawkeye Amusement Co.

• Decision Date: 22 November 1919
• Docket Number: 33076
• Citation: 174 N.W. 703,187 Iowa 940
• Parties: DES MOINES STEEL COMPANY, Appellant, v. HAWKEYE AMUSEMENT COMPANY, Appellee, et al., Appellant
• Court: Iowa Supreme Court

174 N.W. 703

187 Iowa 940

DES MOINES STEEL COMPANY, Appellant, v. HAWKEYE AMUSEMENT COMPANY, Appellee, et al., Appellant

No. 33076

Supreme Court of Iowa, Des Moines

November 22, 1919

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

PLAINTIFF brought this action in equity to recover from both defendants for a fire escape, the material and labor for the construction of which it furnished. Plaintiff also asked that the amount due be declared a lien, and that the court adjudicate and determine which of defendants, or whether all are indebted to plaintiff, and the amount. The trial court found that the Unity Investment Company, appellant, the owner of the building, was liable, and rendered judgment and decree against it alone. The plaintiff has also appealed, claiming that the judgment should have been against both defendants.--Affirmed on both appeals.

Affirmed.

Nourse & Nourse and John L. Gillespie, for appellants.

Chester Strock, for appellee.

PRESTON J. LADD, C. J., EVANS and SALINGER, JJ., concur.

OPINION

PRESTON, J.

1. The only dispute in the case is as to which defendant should pay for the outside iron work for the additional fire escape on the west side of the owner's building. There is little, if any, dispute in the testimony. Neither the lessor nor the lessee ordered the fire escape built. It was ordered by the architects, and it seems to be conceded that the architects represented both, in the remodeling of the premises for the theater and the lessor's premises on the west of the theater. The architects did not undertake to determine which should pay for the fire escape. Neither the lessor nor the lessee came to an agreement as to which was liable. It appears that, on the 21st day of July, 1917, the appellant Unity Investment Company leased to C. C. Taft, Abe Frankel, and Ira B. Thomas, jointly, by a written instrument, store rooms Nos. 719 and 721 West Locust Street, Des Moines, Iowa, to be used for "a moving picture show or for such other lawful mercantile business as lessees may desire," for a term of 10 years, at an annual rental of $ 10,000 per year.

This lease, after providing that said store rooms were to be remodeled for use as a moving picture show, according to plans attached thereto, made by Kraetsch & Kraetsch, architects, and specifications made by them, further provides as follows:

"The lessor further agrees to build a fire escape exit from the premises leased hereby, to Eighth Street, and also to build fire escape exits into the alley from said leased premises, to meet the fire requirements of the ordinances of the city of Des Moines, Iowa, and the laws of the state of Iowa now in force."

The lease further provides:

"The lessees and their subtenants shall at all times fully comply with all the laws of the United States and the state of Iowa, and with the rules, regulations and requirements of the board of health of the state of Iowa, and its several political divisions and with all ordinances of the city of Des Moines Iowa, in relation to the maintenance and use of the said premises, or the maintenance or use of the improvements at any time thereon."

Afterwards, on August 2, 1917, the lessees and the lessor entered into a further contract, supplemental to the original lease, which, after reciting the making of the lease of July 21, 1917, and that the lessees desired to also rent the second floor of the building, immediately over said storerooms, for which second floor they were willing to pay the additional sum of $ 2,400, then provides that the lease "shall be altered in the following particulars, namely:

"That the property leased thereby shall be as follows:

"Storerooms Numbers 719 and 721 West Locust Street, Des Moines, Iowa, approximately 44 by 132 feet in the gross, together with space in the south end of the basement thereunder 20 by 44 feet, to be partitioned off by the lessor for the lessee, and together with the second floor of the building in which said leased premises are situated, immediately over said storerooms. * * *

"That the lessor shall remove the second floor joists and partitions and build a fire wall upon the west side of the leased premises and plaster all of the space covered hereby, ready for decorating, so that said rooms, Numbers 719-721 shall be two stories in height.

"That all of the materials in the joists and partitions of the second floor, not needed by the lessor in making improvements agreed in said lease to be made by lessor, may be taken and used by the lessee in making any improvements therein they desire to make, without any compensation therefor.

"That in event the plans for the use of the said second floor as part of the playhouse contemplated, are submitted to the city council of the city of Des Moines, Iowa, and the said city council shall refuse to approve the said plans, as to said second floor for such use, then this supplement to the said lease shall be void and of no effect but said avoidance shall not affect the said lease of July 21, 1917.

"It is further agreed that the said lease of July 21, 1917, shall be so altered so that the rent to be paid by the lessee to the lessor shall be $ 12,400 per year for each year of the term of the said lease, to be paid in equal monthly installments of $ 1,033.33 I/3.

"It is further expressly agreed that all of the other terms, provisions and conditions of the said lease of July 21, 1917, not above altered, shall remain in full force and effect and shall be applicable not only to the property originally leased and to the rentals to be paid therefor, but shall also be applicable to the additional property leased hereby and all rentals agreed to be paid in compensation therefor."

Later, lessees formed a corporation known as the Hawkeye Amusement Company, defendant herein, which Amusement Company assumed the performance of the lease and of the supplemental lease. Taft, Frankel, and Thomas were all immediately made officers and stockholders of the Amusement Company, and proceeded with the carrying out of the contracts of lease above referred to.

Kraetsch & Kraetsch, architects, drew the plans and superintended all of the work, not only what was done by the lessor, but also the work done by the lessee, and Wm. Knudson & Son were the contractors who did all the work of making the improvements for both of the defendants. The plans for the alteration of the second floor, including the construction of the balcony, were drawn after the plans were drawn and attached to the original lease, and that lease signed by the parties. There would have been no fire escape from the balcony, if the balcony had not been included in the latter plans. The only purpose that that fire escape serves--the cost of which is in controversy in this suit--is as a fire escape from the balcony.

The defendant Unity Investment Company built and paid for the fire escape or exit from the ground floor of the leased premises to Eighth Street, and for the fire escapes or exits of that floor to the alley, being all of the fire escapes comprehended in the original lease.

The first floor of the building in question is about 19 feet in height, and both of the exits or fire escapes onto Eighth Street are built within the height of the first story, one above the other.

The Hawkeye Amusement Company directed the architects to build the balcony. The Unity Investment Company had nothing to do with erecting it, or telling the architects that it was wanted or needed.

The Hawkeye Amusement Company paid for the work...