General Air Conditioning Corporation v. Stuewe

• Decision Date: 12 December 1942
• Docket Number: 35696.
• Citation: 156 Kan. 182,131 P.2d 638
• Parties: GENERAL AIR CONDITIONING CORPORATION v. STUEWE et al.
• Court: Kansas Supreme Court

131 P.2d 638

156 Kan. 182

GENERAL AIR CONDITIONING CORPORATION v. STUEWE et al.

No. 35696.

Supreme Court of Kansas

December 12, 1942

Syllabus by the Court.

The mechanic's lien law is not to be strictly construed because in supposed derogation of common law. Gen.St.1935 60-1401.

A mechanic's lien can only be acquired in manner and on conditions prescribed in statute. Gen.St.1935, 60-1401.

Where dealer, who agreed by terms of sales contract to examine regulate and test air conditioner after it had been installed in residence by purchaser, failed to file a lien statement within four months after date of purchase, such service of examination, regulation and test by dealer was not the "performance of labor in putting up of fixture" under statute fixing rights to a mechanic's lien, and conferred no right upon dealer to a mechanic's lien more than four months after air conditioner had been installed. Gen.St.1935, 60-1401.

1. Rule followed that the mechanic's lien law is not to be strictly construed because in supposed derogation of the common law.

2. Rule followed that a mechanic's lien can only be acquired in the manner and on the conditions prescribed in the statute.

3. Where any person under a contract with the owner of real estate furnishes a fixture to be put up in a residence on the real estate, and agrees that after the fixture has been put up by the owner that he will examine, regulate and test it such service of examination, regulation and test when rendered is not the performance of "labor *** in putting up of any fixtures" etc., under G.S.1935, 60-1401, and confers upon the seller no right to a mechanic's lien.

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Action by General Air Conditioning Corporation against Carl A. Stuewe and others for foreclosure of a mechanic's lien. From an order sustaining a demurrer to the amended petition, the plaintiff appeals.

Chester Stevens, of Independence, for appellant.

Jay W. Scovel, of Independence, for appellees.

THIELE Justice.

This is an appeal from an order sustaining a demurrer to an amended petition in an action for the foreclosure of a mechanic's lien.

The abstracts disclose that the plaintiff commenced an action by filing a petition alleging in substance that on September 9, 1940, it sold to the defendant Stuewe an air conditioning unit for the sum of $189.63 and on September 10, 1940, delivered it to him and that he installed it in his residence on certain described real estate; that the above sum remaining due and unpaid on January 8, 1941, it filed in the office of the clerk of the district court its duly verified statement for a lien, a copy being attached as part of the petition. Reference was also made to a prior mortgage on the real estate, and also to the fact that the defendants Pohl and Pohl claimed some right in the real estate. The lien statement set forth the sale of the air conditioner and its delivery on the dates above noted, and the installation in the residence on the described real estate.

The defendants Pohl and Pohl answered, making certain admissions but denying the air conditioner was sold to defendant Stuewe on September 9, 1940, or delivered to him on September 10, 1940, or that the lien statement was filed within four months from date of sale and of delivery. They alleged Stuewe purchased the equipment prior to and that it was installed on September 5, 1940. They also alleged they were owners of the involved real estate. On the pleadings thus framed a trial was commenced during the progress of which plaintiff asked for and was given permission to file an amended lien statement and an amended petition, and defendants Pohl and Pohl were given time thereafter to plead.

The amended petition alleged sale and delivery of the air conditioner on September 5, 1940, and its installation in the residence by the defendant Stuewe, and further that by the terms and conditions of the sale it agreed with Stuewe as a part and portion of the sale it would without expense to Stuewe send its engineer to the residence to examine the installation and to ascertain if the same was proper and to regulate and test the operation so that the air conditioner would work and perform its functions according to its design and that pursuant to its agreement it sent its engineer to the residence about September 13 or 14, 1940, who then and there examined the installation of the air conditioner and inspected, regulated and tested the same. Other allegations were that it filed its lien statement on January 8, 1941, and that it desired to amend its lien statement by amending a certain paragraph, the substance of which was to set forth...