Marty v. Hippodrome Amusement Company
| Decision Date | 30 June 1913 |
| Citation | 160 S.W. 26,173 Mo.App. 707 |
| Parties | SAMUEL CLINTON MARTY, Appellant, v. HIPPODROME AMUSEMENT COMPANY, and METROPOLITAN STREET RAILWAY COMPANY, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Haff Meservey, German & Michaels, S.D. Newkirk and W. W. Filkin for appellant.
John H Lucas and Hogsett & Boyle for respondents.
This is an action to enforce a mechanic's lien for materials furnished for the repair and alteration of a building on premises leased by the defendant Railway Company to its codefendant. The materials were furnished under a contract with the lessee but the object of the suit is to enforce the lien against the freehold as well as the leasehold estate, on the ground that the lessee in making the improvements was acting as the agent of the lessor as well as in its own behalf. A jury was waived and the court rendered personal judgment against the lessee and adjudged that the leasehold estate be subjected to a lien for the amount of plaintiff's demand but held that no lien had attached to the freehold. Plaintiff appealed.
The facts of the case are as follows: The Metropolitan Street Railway Company owned the premises at the southwest corner of Twelfth and Charlotte streets in Kansas City and had built thereon a brick power house 300 feet long and 125 feet wide, which later it converted into a street car barn and for some years used as a storage place for cars. The floor was covered with tracks and there was a pit under a part of the tracks used by workmen in the repairing of motors and bottom parts of cars. The roof had been allowed to become and remain in a leaky condition and the building could not be used for any other purpose without the making of repairs and alterations.
On September 5, 1908, the railway company entered into a written lease with Joseph R. Donegan by the terms of which it leased the premises for a term of three years at a monthly rental of $ 416.66. Donegan assigned the lease to the Hippodrome Amusement Company with the consent of the lessor and the assignee entered into possession and proceeded to repair the buildings and make alterations to change it into a place of amusement. The lessee was given the privilege of an extension of the term "for an additional period of two years at such increased rate as may be agreed on and if not agreed on, as fixed by arbitrators." Other material agreements in the lease were that the premises were let "in the present condition thereof," that the lessee "intends to remodel and improve said premises at his own expense on estimated cost of eight thousand dollars, the cost of said improvement to be borne by the party of the second part (lessee) and the party of the first part to be indemnified from a loss therefrom" and that the lessee "before beginning such improvement shall execute and deliver to the party of the first part a good and sufficient bond to be approved by the party of the first part, the same to be equal in amount to eight thousand dollars, conditioned that the party of the second part will pay all bills for material and labor, arising out of said improvement and protect the party of the first...
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