Engineering Co. v. Grande Bldg. Co.

• Decision Date: 09 March 1936
• Docket Number: No. 18333.,18333.
• Citation: 86 S.W.2d 595
• Parties: CONCRETE ENGINEERING CO., PLAINTIFF, v. GRANDE BUILDING CO. ET AL., RESPONDENTS, THOMAS L. DAWSON, APPELLANT.
• Court: Missouri Court of Appeals

86 S.W.2d 595

CONCRETE ENGINEERING CO., PLAINTIFF, v. GRANDE BUILDING CO. ET AL., RESPONDENTS, THOMAS L. DAWSON, APPELLANT.

No. 18333.

Kansas City Court of Appeals. Missouri.

March 9, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.

REVERSED AND REMANDED (with directions).

Grant I. Rosenzweig, O'Sullivan & O'Sullivan and Arthur N. Adams for respondents, Jenkins & Grande Building Company.

Raymond C. Barnett and John R. James for appellant.

TRIMBLE, J.

This is an appeal growing out of an equitable mechanic's lien suit brought under section 3180, Revised Statutes Missouri 1929 (7 Mo. St. Ann., p. 5008), to adjudicate several mechanic's lien-claims and the right of the various parties interested in them, and in the real estate sought to be affected, arising out of the erection of a partly constructed structure located at the northeast corner of 13th Street and Grand Avenue in Kansas City, Missouri. The property affected has a front of 123 feet running north on the east side of Grand Avenue and extending east on the north side of 13th Street, 115½ feet to an alley.

At the time the construction of the building was begun, the intention was to erect an eleven, possibly a thirteen, story office building at a cost of one million, two hundred and fifty thousand dollars. This was sometime in the year 1928. The construction of the proposed building was commenced and the structure partly erected, at a cost of $130,000, and then, owing to what is now known as the "business depression" throughout the country and indeed nearly the whole world, and in spite of the utmost efforts of those back of the enterprise, it became impossible to obtain funds to carry on the work, so that further erection of the building ceased, and the uncompleted structure now stands, consisting of three stories of steel reinforced concrete framework, in the basement of which, under the concrete slab of the first floor, firmly mounted and fixed on concrete blocks, are two large Kawanee-type boilers of the value of $2900 installed by Thomas L. Dawson, appellant, under his contract therefor. For these boilers, their installation and labor and materials supplied in connection with the plumbing and heating system, appellant duly filed his mechanic's lien-claim for the balance due on his account, to-wit, the sum of $2604.82. It is the one lien-claim undisposed of, or at least appealed from the judgment of the chancellor in this equitable mechanic's lien suit.

Appellant's said lien was sought to be enforced, not only on the aforesaid unfinished structure and the aforesaid real estate on which it stands, including as a part thereof said boilers and heating system, but also on all the real estate which the future and larger structure, when fully erected, was intended to occupy.

The heretofore mentioned tract of 125 by 115½ feet at the northeast corner of 13th and Grand Avenue on which the partly-erected structure stands and which it occupies, consists of the south twenty-four feet of Lot 25 (the fee of which is owned by Martin P. Kelley), and all of lots 26 and 27, Block 2, in McGee's Addition; said last named three lots are contiguous and form one tract west of said alley, fronting west and located on the east side of Grand Avenue, and constitute the aforesaid tract at the northeast corner of 13th and Grand. In addition to said tract, the lien was sought to be enforced upon Lots 16, 17 and 18, Block 2 in McGee's Addition (said last-named lots constituting, in themselves, a separate tract, lying across and east of the sixteen and one-half foot alley aforementioned in said Block 2 and fronting east on McGee Street).

It will be observed that the steel reinforced framework, erected as aforesaid, and in the basement of which are the boilers and heating apparatus for which appellant's lien is sought, does not touch, and is not contiguous to, said lots 16, 17 or 18, but there is an alley between; and no work or improvements was ever done or furnished upon them by appellant lien-claimant. Indeed no improvements seem to have been made on them, except possibly an excavation for a garage, which may or may not have been intended for use in connection with the steel reinforced concrete framework constructed as heretofore stated. No building has ever been started on said last named lots 16, 17 or 18, and we do not find anything in the record to show that appellant did anything in the way even of excavating for said proposed or projected garage; and, it seems, that such excavation, even if done by appellant, has since been filled up. Consequently, it is not seen why it is necessary to consider any tract other than the one fronting on Grand Avenue.

Said tract was held by the following owners in fee, or groups of owners, named as such for conveniences:

The south twenty-four feet of said Lot 25 was owned in fee by Martin P. Kelley (who is still the fee owner thereof). Lot 26, Block 2, McGee's Addition was owned by John Taylor individually, but as he afterwards died, testate, by which he provided for certain trustees, and left his widow and five named children as his heirs and devisees, all of which, including said trustees, we gather into one group and designate it, for convenience, as the Taylor heirs, all of whom are parties to this equitable mechanic's lien suit.

The remainder of said tract, being lot 27 in said Block 2, McGee's Addition, being the lot immediately adjoining lot 26 on the south, was owned in fee by Andrew P. Jenkins but, as he is now dead, his share of the said portion of the building tract aforesaid, so owned in fee, is represented by said Jenkins' widow and heirs, and they constitute the third group of fee owners and are all properly made parties to this suit.

To set out the various long-time leases, made by each of said three groups of owners in fee to their respective portions of said tract, and the various extensions of time, leasehold assignments, conveyance of said leases and the various requirements and provisions of each, would require a statement of even greater length than is herein made, and would serve no good purpose. It is sufficient to say that each group of said owners in fee, and the heirs in succession of those who later died, made long-time leases, some of ninety-nine and others ninety years' duration, in each of which original long-term leases, the lessors specified and required the lessee to erect, at lessee's cost, buildings and improvements on their respective portions of said real estate of a permanent and substantial character. For instance, Martin P. Kelley, in his ninety-nine-year lease of the south twenty-four feet of Lot 25, required lessee, within the first ten years of said leasehold term, to erect a building and improvements to cost not less than $20,000, and pay all taxes thereon, including that on the landlord's income, and fire and cyclone insurance, and in case of loss, to have such insurance devoted to the restoration of the building or improvements.

There were various provisions empowering the lessee to sell, assign, transfer and sell its interest under the lease and to sublet the same, which transfer or assignment would release the party making such, from any obligation maturing thereafter, but not from those maturing theretofore, but no assignment or transfer out of the original lessee should release it from the obligation to erect the improvements costing not less than $20,000 or from any obligation under the lease prior to the erection thereof, and the original lessee should "stand obligated as a principal obligor to the landlord for the erection of said improvements."

Afterwards, within the time for the erection of said improvements an extension of an additional five years, after the expiration of the original ten years, for the erection of said improvements was granted by said Kelley, the owner of the fee, to the original lessee and to John Taylor who had acquired the said leasehold by due assignment.

A provision in said lease from the owner of the fee, Kelley, stated that:

"Nothing herein shall authorize the tenant or any person dealing with, through or under the tenant, to charge said lands or the interest of the landlord in the premises, or in this lease, with a mechanic's or any lien or encumbrance of any kind whatsoever, on the contrary, all persons dealing with, through or under the tenant, shall be deemed to release and waive all claims against the landlord and his property; and the right and power of the tenant, by any act or omission of the tenant, to charge any lien or encumbrance of any kind against the landlord, or his property, is hereby expressly denied."

A further provision, in addition to the extension of time in which to erect the improvements called for in the lease, was added to the lease, giving the tenant, at the end of the ninety-nine year term, the option to buy from the landlord the land itself and the landlord's interest in the improvements.

Likewise the portion of said tract owned in fee by Andrew P. Jenkins, Lot 27, Block 2, McGee's Addition, was leased for ninety-nine years, which lease, by mesne assignments, came to be also owned by John Taylor.

Said lease contained provisions for the sale of all buildings and improvements on said land to the lessee at the price of $40,000, of which $10,000 was acknowledged to have been paid, and the remaining $30,000 was assumed by the lessee. Said lease further provided that the building now on said premises was not to be torn down or removed by the tenant until after the $30,000 and interest had been paid.

It was further provided in said lease from Jenkins that, within the first ten years of the term of said lease, the tenant would erect improvements to cost not less than $40,000 and maintain them in good condition during the full term of said lease, all to be erected and maintained and kept in repair solely at tenant's own cost and expense, and the said tenant would "save the landlord...