Howes v. Reliance Wire-Works Co.

• Decision Date: 08 April 1891
• Citation: 46 Minn. 44
• Parties: SETH K. HOWES and another <I>vs.</I> RELIANCE WIRE-WORKS COMPANY.
• Court: Minnesota Supreme Court

46 Minn. 44

SETH K. HOWES and another vs. RELIANCE WIRE-WORKS COMPANY.

Supreme Court of Minnesota.

April 8, 1891.

Action brought in the district court for Hennepin county, to determine the defendant's adverse claim to a lien on real estate in Minneapolis.

A demurrer to the answer was sustained by Hicks, J., and the defendant appealed.

Kitchel, Cohen & Shaw, for appellant.

Jackson & Atwater, for respondents.

VANDERBURGH, J.

The questions to be considered in this case arise upon the answer herein which sets up facts upon which the defendant founds a claim for a lien upon the building described therein, and which is demurred to for insufficiency by the plaintiffs. The answer shows that on the 29th day of March, 1888, the plaintiffs purchased the premises in question of one McKinney, who had erected a seven-story brick and stone building thereon, which purchase was made expressly "subject to all liens and claims for liens thereon;" and that while the building was in process of construction, on the 2d day of December, 1887, McKinney entered into a contract with the defendant, whereby the latter agreed to furnish and put into position in the building a wire inclosure for the elevator which was to be used therein, for the sum of $1,927. The contract or agreement, which is made a part of the answer, is as follows:

"We propose to furnish wire elevator inclosure for new building on Nicollet avenue, as per measurements given the writer this day, all of No. 10 wire, 1½ mesh, inch channel, iron frame, wire continuous on one side, balance from floors to ceilings, painted, bronzed, and put in position in good workman-like manner, brass elevator locks, noiseless rollers, etc., for nineteen hundred and twenty-seven dollars, payable on completion of the work. Trusting to be favored with the order, and assuring you of a good job, we are, yours respectfully,

                                              RELIANCE WIRE-WORKS CO
                                                     "Per F. A. HALL, Pres't."
                  "Accepted 12-2, 1887. JAMES McKINNEY, JR."
                

The answer shows also that in pursuance of this contract, and immediately upon the execution thereof, the defendant undertook the construction, "and proceeded and caused to be constructed, in the manner specified in said contract, the said wire inclosure for said building." As soon as the defendant had knowledge of the sale and transfer to the plaintiffs, it notified them of the contract, and their readiness and willingness to deliver and to put in position in the building the elevator inclosure, which had been completed by them, ready for delivery. The defendant also formally tendered a performance of the contract in this particular, which was expressly refused by the plaintiffs, who "forbade defendant to put said elevator inclosure into said building, or to place the same in position therein, and still do so refuse," and defendant alleges his readiness and willingness to deliver and place in the building the fixture, as agreed to be done. We may therefore infer from the record that the defendant had commenced the construction of the "wire inclosure," if it was not actually completed and ready for the building, before the sale by McKinney, and that it fulfilled the contract in all respects save as presented by the plaintiffs. The fixture was constructed in conformity with the contract, and was ready in due season, that is, "as soon as possible after making the contract, and was fully completed and ready for delivery as soon as was necessary in the construction of said building; and that the defendant was, on September 14, 1888, and for a long time prior thereto had been, and ever since has been, and still is, ready, able, and willing to deliver to plaintiffs, and put in place in said building, the said elevator inclosure." It was a fixture or improvement especially designed and constructed for this particular building, and presumably on the credit thereof. It was to be made and fitted in the building, and thus become a part of it. The defendant was a contractor for the construction of this improvement, and if he had brought any part of the materials on the premises, and the sale had taken place while the work was in progress, he could not have been deprived of his right to a lien upon the completion of the job in the building. But, as between defendant and McKinney, it could hardly be material that the work of construction should...