Gates v. Fredericks
| Decision Date | 16 April 1898 |
| Docket Number | Civil 608 |
| Citation | 5 Ariz. 343,52 P. 1118 |
| Parties | J. E. GATES, Plaintiff and Appellant, v. R. H. FREDERICKS et al., Defendants and Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins Judge.
Affirmed.
T. W Johnston, for Appellant.
The following authorities are cited on the proposition that appellant is entitled to a lien on this property: Eaman v. Bashford, 4 Ariz. 199, 37 P. 25; Collins v Cowan, 52 Wis. 634; Hill v. Gill, 40 Minn. 441, 42 N.W. 294; Paulsen v. Menske, 126 Ill. 72, 18 N.E. 275; Cady v. Case, 11 Wash. 124, 39 P. 375; Kremer v. Walton, 11 Wash. 120, 39 P. 374; Reilly v. Stephenson, 62 Mich. 509; Church v. Garrison, 75 Cal. 199, 16 P. 885; Moore v. Jackson, 49 Cal. 109; Otis v. Dodd, 90 N.Y. 336.
Herndon & Norris, for Appellees.
The case of Johnson v. Dewey, 36 Cal. 623, is very strong against the position taken by appellant. In that case S. was the tenant of D., and desired, for his own benefit, that the house should be raised and improved, and was willing to pay the cost, provided D. would consent and extend his lease for six years and advance him three thousand dollars, in consideration of which advance S. would pay fifty dollars per month more rent than he was paying. D. assented, and S. proceeded to raise the house. Johnson put in the lowest bid and obtained the contract. The court held that the lien which plaintiffs acquired, if any, was not upon the interest of D., the owner, but upon the interest of S., the lessee. The contractor acquired no right of action against the owner nor any lien upon his interest in the property. See, also, Hayes v. Fessenden, 106 Mass. 228.
The facts are stated in the opinion.
R. N Fredericks, A. J. Herndon, and Jane Jackson are the owners of lot 24 in block No. 13 in the city of Prescott, Arizona, on which is situated a building used for business purposes. William Mehan and John Coyle engaged in business in said city in 1895 under the firm name and style of Mehan & Coyle, and conducted a saloon on said premises under a lease which they held from the owners. On the first day of November, 1895, Mehan & Coyle leased said premises from the appellees for the term of two years, paying a monthly rental of ninety dollars per month, and went into possession of the premises. They employed the plaintiff Gates, to fix up for them in the building a bar and back bar and screen, and afterwards they had some work done on the building itself in fixing the roof, and strengthening the floor, and putting on baseboards. The contract price for the bar and back bar was $ 210, and the whole amount of work done by plaintiff for Mehan & Coyle amounted to $ 324.14. The bar, back bar, and screen were no part of the building. After appellant had completed all the work he undertook to perfect a mechanic's lien upon the building and lot, and, to accomplish that purpose, filed in the recorder's office of Yavapai County his itemized and attested account under paragraph 2258 of the Revised Statutes of Arizona, which showed a balance due of $ 197.64, and brought this action in the district court against these appellees to foreclose the lien, seeking to hold their property for the payment of that amount. William Mehan and John Coyle were joined in the action as co-defendants with these appellees. On the twenty-first day of December, 1896, judgment was rendered in said district court against Mehan & Coyle for the sum of $ 197.64, with interest and costs; and it was further ordered, adjudged, and decreed by the court that plaintiff do not have a mechanic's lien for the amount above found to be due him, or for any other sum, upon the premises described in his complaint, being the property of the defendants Fredericks, Herndon, and Jackson, and that defendants be dismissed, with the costs by them expended. From the judgment and decree dismissing appellees the appellant brought this appeal.
The question for this court to determine is whether under the evidence the court erred in its judgment that the plaintiff had no lien against the property of the owners. Paragraph 2258 of the Revised Statutes of Arizona is as follows, to wit: "That any person or firm, lumber dealer, artisan or mechanic who may labor or furnish material, machinery fixtures or tools to erect any house or improvement, or to alter or repair any building or improvement whatever, shall have a lien on such house, building, fixtures or improvements, and shall also have a lien on the lot or lots of land necessarily connected therewith, to secure the payment for labor done, lumber, material, machinery or fixtures and tools furnished for construction, alteration or repairs." The appellant seeks to hold the property of appellees liable for the debt under the theory that Mehan & Coyle were acting as the agents of the owners of the property, and were such agents as is prescribed by the statute; and further seeks to hold the appellee Fredericks alone as to his interest from a direct contract which they claimed Fredericks entered into with the appellant for the work that was to be done upon the building itself. The statute prescribing liens for mechanics, laborers, and others in several places uses the word "agent." For instance, in paragraph 2260, where it directs a service of the account upon the party owing the debt, it says, "It may be furnished to the party owing the debt or to his agent," using the word "agent" in connection with the owner or debtor. Again, when service is to be had upon the owner or debtor (paragraph 2280): "The word 'agent,' as used in this act, shall be construed to include all contractors, subcontractors, architects, builders; and persons who have the charge or control of any mine, mining claim, canal, water-ditch, flume, aqueduct, reservoir, fence, bridge, mill, factory, hoisting works or other property or thing upon which labor has been performed or material furnished." This court, in the case of ...
To continue reading
Request your trial