Joplin Supply Co. v. West

• Citation: 130 S.W. 156,149 Mo. App. 78
• Parties: JOPLIN SUPPLY CO. v. WEST et al.
• Decision Date: 07 July 1910
• Court: Missouri Court of Appeals

130 S.W. 156

149 Mo. App. 78

JOPLIN SUPPLY CO. v. WEST et al.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. PARTNERSHIP (§ 54) — EXISTENCE — EVIDENCE.

Evidence held insufficient to show a partnership by express agreement, but sufficient to authorize a finding that a partnership existed by operation of law.

2. MECHANICS' LIENS (§ 1) — NATURE OF LIEN.

Mechanics' liens are purely a creation of statute in this country, and were unknown to the common law, and the principle on which the statutes were originally enacted was to subject land to a lien for material and labor expended in the construction of buildings which have by being placed on the land become a part thereof.

3. MECHANICS' LIENS (§ 184) — SUBJECT THEREOF — BUILDINGS SEPARATE FROM LAND.

The right to give liens on buildings separate from the land is not curtailed by constitutional provisions, and the whole question is purely statutory, and each state by its own legislation and decision formulates its own rules, but when no special legislation exists providing for liens where the buildings and land are not owned by the same party, the weight of authority is against the lien.

4. MECHANICS' LIENS (§ 5) — STATUTES — LIBERAL OR STRICT CONSTRUCTION.

The mechanic lien law should be liberally construed.

5. LICENSES (§ 44) — DISTINCTION BETWEEN "LICENSE" AND "LEASE."

The difference between a license and a lease is that a lease gives to the tenant the right of possession against the world, while a license creates no interest in the land, but is simply the authority or power to use it in some specific way.

6. FIXTURES (§ 31) — RIGHTS OF LICENSEE — BUILDINGS OR IMPROVEMENTS — ERECTION AND REMOVAL.

If a licensee erects buildings or improvements on land for his own use, he has a right to remove the same, and they remain his personal property, and he must be given a reasonable time for their removal.

7. STATUTES (§ 188) — CONSTRUCTION — PRIMARY RULE.

The primary rule for the construction of all statutes of this state is, as laid down in Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), that words and phrases shall be taken in their plain or ordinary meaning or usual sense, and regard is to be had to their general and proper use.

8. STATUTES (§ 61) — ENACTMENT — PRESUMPTION AS TO LEGISLATIVE INTENT.

It is not presumed that the Legislature intended to enact an absurd law, or one which is incapable of being intelligently enforced.

9. STATUTES (§ 184) — CONSTRUCTION — REFERENCE TO SUBJECT-MATTER, OBJECTS AND REMEDY.

Statutes must be construed in reference to the subject-matter, the objects which prompted

and induced their enactment, and the mischief they were intended to remedy.

10. MECHANICS' LIENS (§ 184) — SUBJECTS THEREOF — PERSONAL PROPERTY — MINING PLANTS ON LICENSED LOTS.

Laws 1901, p. 206, repealing Rev. St. 1899, § 4206 (Ann. St. 1906, p. 2289), and enacting a new section in lieu thereof provides that "every building or other improvement erected, or materials furnished according to the provisions of this article (relating to mechanics' liens), on leased or licensed lots or lands shall be held for the debt contracted for on account of the same, and also the licensed interest or leasehold term for such lot and land on which the same is erected," and further providing that the purchaser of the improvement under the lien act shall have the right to remove the improvements within 60 days, held to extend the privileges of a lien to personal property and to give the benefit of the lien to persons furnishing materials and performing labor in the erection of mining plants by licensees on licensed lots.

11. MECHANICS' LIENS (§ 271) — ENFORCEMENT AGAINST BUILDINGS — DESCRIPTION OF REAL ESTATE IN PETITION.

The sufficiency of the description of the land in a petition to enforce a mechanic's lien against buildings only, is immaterial.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Suit by the Joplin Supply Company against W. H. West and others. From a judgment for plaintiff, defendants appeal. Affirmed.

McIndoe & Thurman, for appellants. Haywood Scott, for respondent.

GRAY, J.

The respondent instituted this suit in the circuit court of Jasper county, against H. A. Ayres, James D. Livingston, W. H. West, as partners, the Buenos Ayres Mining Company, and the Clermont Land, Mining & Milling Company, to recover a judgment against the partners for the sum of $730.58, and asking that the sum be declared a lien against a certain concentrating plant, under the statutes relating to mechanics' liens. The petition further alleges that the plaintiff, at the instance and request of the said partners, furnished an engine, materials, and machinery for the construction of one complete concentrating plant owned by the said partners, and that all of said material and machinery were used in the construction of said plant, and all situated and located upon a certain tract of land held by said Ayres under a license from the Scranton Mining & Smelting Company, the owner of the real estate, for a period of 10 years from the 16th day of December, 1908, and specifically describing one acre of said tract upon which it was claimed the concentrating plant was located. The petition further alleges the sale and transfer of the plant and license to the Buenos Ayres Mining Company, and a like sale and transfer by that company to the defendant Clermont Land, Mining & Milling Company, a corporation organized under the laws of the state of Kansas. The Buenos Ayres Mining Company answered, and, in addition to a general denial, alleged that none of the defendants ever owned any interest or estate in the premises described in plaintiff's petition, and that the only interest any of the defendants ever had was merely a license from the landowner, without the right of assignment, and the licensee had the privilege of removing said buildings and structure from the premises at the termination of said license. The answer of this defendant further denied that plaintiff sold any goods or furnished any material to the defendant Ayres, but averred the fact to be that if the plaintiff did sell any goods that entered into the buildings, the same were sold to the Ayres Brokerage Company, a corporation. The defendants Allen, West, and Livingston filed an answer duly verified, denying that they were partners of H. A. Ayres, and further denying that any of the defendants ever owned a leasehold or any interest or estate in the premises described in plaintiff's petition; and that, if H. A. Ayres ever did own any interest, the same was merely a license, and the licensee had the privilege of removing the buildings and structures from the premises. They also denied that plaintiff sold any goods to Ayres, but alleged the sale was to the Ayres Brokerage Company. The other defendants did not answer. The case was tried before the court without a jury, resulting in a judgment in favor of the plaintiff and against the defendants Allen, West, and Livingston in the sum of $727.65, and declaring the same to be a lien against the concentrating plant described in the petition. From the judgment, West, Livingston, and Allen appealed.

There are but two points involved in this appeal. First, is the plaintiff entitled to a personal judgment against the appellants? Second, is the plaintiff entitled to a mechanic's lien?

About January 30, 1909, H. A. Ayres was the owner of a mine known as the "High Tariff Mine," and was operating the same under a written mining license from the owner of the land on which the mine was located. On that day he made a written proposal to the appellants and others, stating that he was the owner of the exclusive right to mine for 10 years the premises described in the petition; that at said time there was already mined or fully exposed and disclosed therein minerals of the value of $30,000, and he offered to sell to the appellants and others, known as the St. Louis Syndicate, the right to acquire a half interest in his lease or license and the other property about the mine, upon a subscription by the syndicate of the sum of $15,000, for the purpose of purchasing and erecting a mill upon the premises, for the purpose of mining and cleaning ore. The proposition further contained a statement that a corporation was to be organized with a capital stock of $100,000, and the St. Louis Syndicate was to control 50 per cent. thereof. The directors of the proposed corporation were to be three in number, Ayres to be one and the other two to be named by the syndicate. The proposition was to be good for 20 days. The St. Louis Syndicate did not accept the proposition as made, but made a counter proposition which was signed by both parties, as follows: "St. Louis, 2-12-09. Our proposition is that Mr. Ayres shall sign an agreement not to draw any dividends from the mine, unless there is sufficient ore in sight, together with the equity in the mill, to equal the sum of $15,000. Should any question as to value of ore and mine come up, same shall be decided upon by an expert, decided on by both parties. In other words the assets of the mine, as it now stands, up to 15 M, shall belong to the syndicate, less the dividends drawn by the syndicate. When the syndicate has drawn 15 M in dividends from the mine, this agreement is void. It is understood that Mr. Ayres shall draw dividends as long as there is ore and equity in the mill, to the amount of $15,000. It is also understood that, should the mine be abandoned, the syndicate shall have the first right to the sales of its assets, up to $15,000, less the amount of dividends drawn by the syndicate up to that time. The foregoing is agreed to by the parties above defined, and the title and interest of Herbert A. Ayres in the property mentioned is hereby assigned to the St. Louis Syndicate according to the terms of proposition of January 30, 1909, by said Ayres to said syndicate; details to be completed as therein agreed. H. A. Ayres, St....