Fisher v. McPhee & McGinnity Co.

• Decision Date: 15 September 1913
• Citation: 135 P. 132,24 Colo.App. 420
• Court: Colorado Court of Appeals
• Parties: FISHER v. McPHEE & McGINNITY CO. et al.

135 P. 132

24 Colo.App. 420

FISHER v. McPHEE & McGINNITY CO. et al.

Court of Appeals of Colorado

September 15, 1913

Appeal from District Court, City and County of Denver; James Owen Judge.

Action by the McPhee & McGinnity Company against Rachel L. Fisher and others, in which defendant R.S. Willoughby, doing business as the Silver State Electric Company, filed a cross-complaint. From a judgment in favor of plaintiff and the cross-complainant, the defendant Fisher appeals. Affirmed on rehearing.

L.J. Stark, of Denver, for appellant.

Thomas B. Stuart, Charles A. Murray, and J.E. McCall, all of Denver for appellee Willoughby. Bartels, Blood & Bancroft and Raymond J. McPhee, all of Denver, for McPhee & McGinnity Co.

KING J.

The McPhee & McGinnity Company, a corporation, one of the appellees, as plaintiff, brought its suit to establish and enforce a mechanic's lien against the property of Rachel L. Fisher and to obtain personal judgment against said Fisher and one W.B. French. R.S. Willoughby, doing business as the Silver State Electric Company, another lien claimant, was also made a defendant. The judgment was in favor of plaintiff on its complaint, and likewise of Willoughby on his cross-complaint, giving personal judgment for the amount of their claims as against French only and establishing and ordering foreclosure of the liens of both plaintiff and Willoughby. Fisher alone appealed.

The complaint alleged, in substance, that defendant Fisher was the owner of a certain lot in Denver and building thereon in which a moving picture show was conducted; that French was lessee of said premises; that, while in possession as such lessee, French purchased from plaintiff certain building materials for use, and which were used, in the alteration addition to, and repair of the building on said lot, with the knowledge of the defendant Fisher, and under and by virtue of a contract between French and Fisher largely in excess of $500; that neither said contract nor any memorandum thereof had been filed in the office of the county clerk and recorder; and that Fisher had not at any time given notice to plaintiff that her interest in said lot and building should not be subject to a lien for said materials so furnished and used either by serving upon plaintiff written or printed notice to that effect or posting such notice upon said real estate or building, nor in any other manner; alleged due service upon defendant Fisher, and record of the lien statement.

Willoughby, for cross-complaint, alleged that, doing business under the name of the Silver State Electric Company, he had, at the instance and request of said French, furnished materials and performed labor in placing an electric system in said theater building. In all other material respects, the cross-complaint was, mutatis mutandis, the same as plaintiff's complaint. All the allegations of the complaint and cross-complaint, except Fisher's ownership of the lot and building, the recording of the lien statement, and service thereof by plaintiff, were put in issue by the answer of appellant.

From the foregoing statement it will be observed that both the complaint and the cross-complaint seek to establish and enforce liens as against the premises and Fisher, the owner thereof, upon two statutory grounds: (1) Under the general provisions of the mechanics' lien act, because, as alleged, the owner expressly or impliedly, through a tenant, contracted for the materials furnished and the labor performed; (2) under section 5 of the act of 1899 (Session Laws 1899, p. 261; section 4029, M.A.S.1912; section 4029, R.S.1908)--the contention being that, in the absence of any contract, express or implied, with the owner, nevertheless the premises are subject to the liens, because the owner, with knowledge that the improvement was being made, did not, as required by that section, notify the claimants that her interest should not be subjected to the liens. No objection was made to the joinder of these causes of action in one count.

There was an entire failure to prove the first statutory ground alleged; there was no contract with the owner, either as to French or the lien claimants. French was not the lessee but was in possession and was treated by Fisher as the lessee, or its agent, and the improvements, in the making of which the materials were furnished and the labor bestowed, were made at his instance and request but without the permission and after the express refusal of the defendant Fisher to grant such permission.

1. Unless so provided by the terms of the lease, the lessee is in no sense the agent or superintendent of the lessor, nor is he a contractor for the lessor, within the contemplation of the lien statute. The owner of property cannot be bound nor his property charged with a lien by the unauthorized act of the lessee in having improvements made on the leased property. Wilkins v. Abell, 26 Colo. 462, 58 P. 612; Antlers Park R.M. Co. v. Cunningham, 29 Colo. 284, 68 P. 226; Phillips on Mechanics' Liens, §§ 58 and 65; Hopkins v. Hudson, 107 Ind. 191, 8 N.E. 91.

2. The act of French in causing the improvements to be made being wholly unauthorized, it is obvious that neither the plaintiff nor cross-complainant can enforce a lien under the general provisions of the mechanic's lien act but must rely wholly upon section 5 aforesaid, which, so far as material, is as follows "Any building *** and every structure or other improvement mentioned in the preceding sections of this act, constructed, altered, added to, remove to or repaired, either in whole or in part, upon or in any land, with the knowledge of the owner or reputed owner of such land, or of any person having or claiming an interest therein, *** shall be held to have been erected, constructed, altered, removed, repaired or done at the instance and request of such owner or person, but so far only as to subject his interest to a lien therefor as in this section provided; and such interest so owned or claimed shall be subject to any lien given by the provisions of this act, unless such owner or person, shall, within five days after he shall have obtained notice of the erection, construction, alteration, removal, addition, repair or other improvement, aforesaid, give notice that his interests shall not be subject to any lien for the same, by serving a written or printed notice...