Elliott & Barry Engineering Co. v. Baker

• Citation: 114 S.W. 71,134 Mo.App. 95
• Parties: ELLIOTT & BARRY ENGINEERING COMPANY, Appellant, v. BAKER et al., Respondents
• Decision Date: 01 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 71

134 Mo.App. 95

ELLIOTT & BARRY ENGINEERING COMPANY, Appellant, v. BAKER et al., Respondents

Court of Appeals of Missouri, St. Louis

December 1, 1908

Appeal from St. Louis City Circuit Court.--Hon. Jas. E. Withrow Judge.

Judgment affirmed.

Kent Koerner and W. K. Koerner for appellant.

(1) The statute relating to mechanic's liens is highly remedial to its nature and should receive a liberal construction in favor of the lienor. DeWitt v. Smith, 63 Mo. 263; Waldon v. Robertson, 120 Mo. 38; Hicks v Scofield, 121 Mo. 381; O'Shea v O'Shea, 91 Mo.App. 221. (2) A mortgage or other lien prior in point of time, to a mechanic's lien, has priority over such mechanic's lien as to the property which was in existence and covered by the mortgage at the time it was executed, and as to all repairs thereto; but a mechanic's lien for a new and independent improvement, although subsequent in point of time, has priority as to such new improvement. Holland v. Cunliffe, 96 Mo.App. 67; Lumber Co. v. Clark, 172 Mo. 588, 82 Mo.App. 225; Deatherage v. Sheidley, 50 Mo.App. 490; Lumber Co. v. Stepp, 157 Mo. 366; Schulenberg v. Hayden, 146 Mo. 595; Dugan v. Scott, 37 Mo.App. 663. (3) A mechanic's lien attaches for the installation of a heating apparatus intended for the ordinary and permanent purposes of a building. Cooke v. McNeil, 49 Mo.App. 81; Sosman v. Conlon, 57 Mo.App. 25; Reilly v. Hudson, 62 Mo. 383.

John C. Vaughan for respondent Mary G. Wall.

A mortgage on property with a completed building thereon takes priority over mechanics' liens for repairs, replacements or additions subsequently furnished for such building. Schulenberg v. Hayden, 146 Mo.App. 583; Reed v. Lambertson, 53 Mo.App. 79; Dugan v. Scott, 37 Mo.App. 663. The word "improvements" used in our statute means an independent structure on the land, not an addition to an existing building. Haeussler v. Thomas, 4 Mo.App. 468; Equitable Insurance Co. v. Slye, 45 Iowa 618; Getchell v. Allen, 34 Iowa 559. Our statute gives no lien on additions or machinery furnished, but gives a lien for machinery furnished on the building of which it has become a part. Hall v. Mullanphy Co., 16 Mo.App. 458; Collins v. Mott, 45 Mo. 102; Hall v. St. Louis Mfg. Co., 22 Mo.App. 38. A lien for subsequent additions to an existing building is subject to a prior mortgage, even though the additions may be readily identified and removed.

OPINION

GOODE, J.

In July, 1906, respondent Ella M. Baker owned a house and lot in St. Louis, but incumbered by two deeds of trust, executed May 15, 1906; one for a large amount. Prior to the trial the second deed of trust had been foreclosed and the property passed to the purchaser at the foreclosure sale. On July 18th of said year, Ella M. Baker engaged appellant, a corporation, to install in her residence a hot water heating apparatus in lieu of a hot air furnace, agreeing to pay $ 635 for the work. Appellant was to furnish the apparatus necessary for heating by hot water, including a boiler to be placed in the basement, and coils and radiators leading from it to the different rooms. The heating plant was installed and the evidence inclines to prove it could be taken out without further damage to the building than leaving holes in the floors where pipes ran through. The present action was instituted to enforce a mechanic's lien against the property and the beneficiaries and trustees in the two deeds of trust are parties. There is no dispute about the facts. Appellant asked the court to declare that if, sitting as a jury, it found the heating apparatus was intended and designed for ordinary use in the building, forming an integral part thereof, then, under the evidence and the agreed facts, appellant was entitled to a mechanic's lien against the land, building and premises; and if the court further found the heating apparatus was an entirely new and independent improvement, and could be removed from the premises without damage to them, appellant's lien was entitled to priority over the liens of the deeds of trust; that respondent could have said apparatus sold to satisfy its lien and the purchaser might detach and remove the same from the building. The court refused this declaration and gave the deeds of trust preference over appellant's demand, which ruling is assigned for error. The point in contention between the parties is this: appellant says the heating apparatus is a distinct and independent improvement, against which it is entitled to have a lien declared in priority to the liens of the two deeds of trust of earlier date than the inception of appellant's work; whereas respondent contends to the contrary.

Whether the material of which an improvement in a building is composed can be taken out of the building without substantial damage, is not the criterion prescribed in the cases for determining the question of the priority between an incumbrancer whose deed of trust was on the property when the improvement was made, and the person seeking a lien; or at any rate, not the only criterion. The test of precedence is whether the work and material were done and furnished in the completion of the building, or in making repairs on one already finished when the incumbrance was taken. In the former contingency the lien will have preference as to the building, over the incumbrance, because to do so will not impair the security on which the...