Dougherty-Moss Lumber Co. v. Churchill

• Decision Date: 06 November 1905
• Citation: 90 S.W. 405,114 Mo. App. 578
• Parties: DOUGHERTY-MOSS LUMBER CO. v. CHURCHILL et al.
• Court: Missouri Court of Appeals

90 S.W. 405

114 Mo. App. 578

DOUGHERTY-MOSS LUMBER CO. v. CHURCHILL et al.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. MECHANICS' LIENS—ESTATES AFFECTED— LANDLORD'S REVERSION.

A lessor, who authorizes the lessee to make improvements which effect a substantial betterment of the reversion, such as the conversion of a hotel building into a theater, without providing for the restoration of the premises to their original condition at the expiration of the term, impliedly constitutes the lessee his agent for the purpose of subjecting the reversion to the liens of materialmen and laborers who engage in the construction of the improvement under the employment of the lessee.

2. SAME—WHO ARE CONTRACTORS.

A lease which provides for the making of improvements by the lessee which benefit the reversion does not make the lessee a contractor for the improvement, within the meaning of the mechanic's lien statutes; but such statutes apply only to persons who under contract with the owner undertake to furnish the material, labor, and superintendence required in the improvement of the owner's premises.

3. SAME — ENFORCEMENT — PLEADING—VARIANCE.

The fact that certain defendants in a suit to enforce a mechanic's lien were shown to be lessees who had agreed with the owner of the premises and lessor to make the improvement, whereas the petition erroneously designated them as original contractors for the improvement with the owner of the premises, did not constitute such a variance between the pleading and proof as to preclude the enforcement of the lien.

4. SAME—AUTHORITY OF AGENT—DELEGATION.

An owner of premises leased the same to an individual, with the understanding that the latter was to form a corporation to take over the lease. The lease provided for the making of improvements benefiting the reversion by the lessee. The corporation was formed by the lessee; he himself being the only substantial stockholder and person interested therein. The corporation then proceeded, in its name and under the management of the lessee, to make the improvements required by the lease, and a mechanic's lien was filed against the premises by one who furnished material on the corporation's account. Held that, since, the lessee was in fact the corporation and whatever was done in carrying out the contract was his act, there was no unwarranted delegation of authority by the lessee to the corporation to make the improvements and subject the premises to a lien.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by the Dougherty-Moss Lumber Company against E. P. Churchill and others. From the judgment rendered, plaintiff appeals. Reversed.

Vories & Vories and Willard P. Hall, for appellant. C. F. Strop, for respondents.

JOHNSON, J.

Action to enforce a mechanic's lien. On October 3, 1903, the Center Building Company, the owner in fee of lots 1 and 2, in block 5, of Smith's addition to the city of St. Joseph, entered into a contract in writing under which it demised certain portions of the premises to the defendant Churchill for a period of 10 years. The property is located in the business center of the city, and at the time stated was improved by a three-story brick business building. The north 40 feet of the building, which faced west on Sixth street and extended east 120 feet, had been occupied by a hardware concern, the first floor and basement of the adjoining 20 feet by a clothing firm, and the remainder of the building, the entire frontage of which is 120 feet, had been used as a hotel. The premises rented to Churchill under the contract mentioned consisted of the second and third stories of the whole building and a space upon the first floor about 40 by 25 feet in dimensions, fronting on Sixth street. The following are some of the stipulations contained in the contract: "Said premises are to be used during the term of this lease, by the said lessee, for theater purposes. The space on the first floor, above described, is to be used as a lobby and passageway to the second and third floors, and to that end the lessee shall have the right to construct such stairways and box office therein as he may find necessary, and the lessee shall have the right to remodel and reconstruct the second and third floors," to provide an auditorium with balconies, stage, dressing rooms, and appurtenances. The right was also given to remove a portion of the roof for the construction thereon of an auxiliary building called a "doghouse," to shelter the appliances used in suspending and shifting scenery for the stage. "All improvements made by the said lessee as aforesaid shall be at his own expense and on his own account," and under the direction and supervision of an architect, chosen by the lessor, whose judgment and decision "as to what is necessary for the purpose of properly preserving the walls or roof of said premises or support of same * * * shall be absolute and final upon both parties." The right was given to the lessee to use in the new construction material derived from the wreckage of the old, and of that not so used certain portions were to belong to the lessee and the remainder to the lessor. "The obligation to pay rent shall not commence until January 1, 1904, unless the aforesaid lessee is able to get said premises in condition for operating a theater before said date," in which latter event the rent began from the date of completion. The amount of rent for the first five years was fixed at $3,600 per year and thereafter at $4,500 per year, payable in monthly installments. "At the termination of this lease said lessee agrees to surrender to the said lessor possession of the premises so leased in as good condition as he received the same, considering the alterations above provided for and the usual wear excepted. * * * Said lessee may sublet the premises herein leased to such corporation as he may hereinafter form or cause to be formed for the purpose of operating a theater therein, but the lease so executed by said lessee to such corporation shall be by him assigned to said lessor as security," etc. It appears that shortly after making this contract Churchill procured the incorporation of the defendant the Lyric Theater Company, and assigned to it the contract. Churchill owned all of the capital stock, but gave to two other persons one share each to qualify them as incorporators and directors. The corporation thus formed proceeded in its name, under the management of Churchill, to make the improvements required by the contract. It purchased on its account the necessary lumber from plaintiff, but failed to pay in full the obligation so incurred. Plaintiff sued to recover the amount due, $1,421.80, and to have the same adjudged a lien both upon the leasehold and reversionary interest. A jury was waived, and the court, after hearing the evidence, entered personal judgment against the theater...