McGuinn v. Federated Mines & Milling Co.

• Decision Date: 04 December 1911
• Citation: 160 Mo. App. 28,141 S.W. 467
• Court: Missouri Court of Appeals
• Parties: McGUINN v. FEDERATED MINES & MILLING CO.

141 S.W. 467

160 Mo. App. 28

McGUINN v. FEDERATED MINES & MILLING CO.

Springfield Court of Appeals. Missouri.

December 4, 1911.

1. MECHANICS' LIENS (§ 61)—MATERIALMAN'S LIEN—CONTRACTING PARTIES.

Under Rev. St. 1909, § 8212, giving laborers and materialmen a lien for labor performed and material furnished under "any contract with the owner or proprietor thereof or his agent, trustee, contractor, or subcontractor," a mechanic's lien cannot be had unless the work was done or the material was furnished under a contract with the owner, etc.

2. MECHANICS' LIENS (§ 72)—MATERIALMAN'S LIEN—CONTRACTING PARTIES — "AGENT"— TENANT.

A tenant is not, by virtue of his relation as such, the landlord's agent so as to subject the latter's property to a materialman's lien under Rev. St. 1909, § 8212, giving a lien for material furnished under a contract with the owner or his agent, nor is he the landlord's agent within the statute for making repairs by reason of a general covenant by the tenant to keep the premises in repair, but he is the latter's agent within the statute if the landlord binds the tenant for a compensation to make substantial improvements upon the property, so as to entitle one furnishing material for the improvements under contract with the tenant to a lien.

3. MECHANICS' LIENS (§ 63)—MATERIALMAN'S LIEN—CONTRACTING PARTIES—CONTRACT BY TENANT.

Defendant leased a mining plant consisting of boilers, engines, etc., under a lease which recited that the tenant acknowledged receipt of the plant in good, first-class condition and agreed to keep it in good, first-class repair at his own expense, and if any part thereof, including the boilers, etc., wore out during his operation under the lease he would replace it with new material of the same kind, and would deliver up the plant in as good condition as received, usual wear excepted. Held, that the plant was not subject to a materialman's lien for repairs to the boiler by patching, made under a contract with the tenant; the tenant not being required by the lease to make any improvements.

4. MECHANICS' LIENS (§ 279) — MATERIALMAN'S LIEN—BURDEN OF PROOF—EXECUTION OF CONTRACT.

The burden is upon one seeking to enforce a materialman's lien for repairs to a mining plant, made under a contract with the tenant, to show that he was the owner's authorized agent to have the repairs made.

5. LANDLORD AND TENANT (§§ 150, 152)—REPAIRS—DUTY OF LANDLORD.

Particular repairs must be stipulated for in the lease, and the landlord is not liable for other repairs than those particularly stipulated for in the lease.

6. MECHANICS' LIENS (§ 5) — CONSTRUCTION OF STATUTES.

While the mechanics' lien law should be liberally construed to effectuate the legislative purpose, it cannot be extended to facts not fairly within its general scope.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by W. H. McGuinn against the Federated Mines & Milling Company. From a judgment for defendant, plaintiff appeals. Affirmed.

F. M. Cummings, for appellant. Spencer, Grayston & Spencer, for respondent.

GRAY, J.

This action was instituted to foreclose a mechanic's lien filed by the plaintiff against a certain mining plant composed of boilers, engines, and other machinery, and building inclosing same, situated upon certain real estate in Jasper county.

The evidence discloses that the defendant was the owner of a mining lease on the real estate in question, and was also the owner of the mining plant above mentioned; that it leased the same to one Pottorff, who assigned the same to one Hollywood. After Hollywood took possession of the property under the lease, he had the plaintiff repair the boiler by putting a patch on it, and by replacing the tubes. The case was tried before the court without a jury, judgment was rendered for the defendant, and plaintiff appealed. No declarations of law were asked or given, and the only error assigned is, that under the law and the evidence, the court should have found for the plaintiff.

The lease under which Hollywood was operating at the time he engaged plaintiff to do the work sued for contained the following: "The party of the second part hereby acknowledges receipt of said concentrating plant, tools, and supplies, all of said mining plant, tools, and supplies being in good, first-class condition. And agrees to keep the same in good, first-class repair at his own expense, and if any portion of the same, including machinery, boilers, belts, or pulleys break or wear out during his operation under this agreement, that he will replace the same with new material of the same kind and not inferior in any respect. And that he will deliver up all of said concentrating plant, tools, and supplies in as good condition as they are at the present time, usual wear and tear only excepted."

The only question submitted on this appeal is whether by the above terms of the lease the tenant was authorized as the agent of the defendant lessor, to bind its property for the lien account. Our statute (section 8212, Rev. St. 1909) gives the laborer and materialman a lien for labor performed and material furnished "under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor." And our courts hold in order for the plaintiff to recover he must show that he did the work, or furnished the material under a contract with the owner or his agent. Badger Lbr. Co. v. Stepp et al., 157 Mo. 366, 57 S. W. 1059; Hengstenberg v. Hoyt, 109 Mo. App. 622, 83 S. W. 539.

And the rule is universal that under such a statute a tenant merely by his relation as such is not the agent for the landlord so as to subject the latter's estate to the lien. Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236, 69 S. W. 304; Stenberg v. Liennemann, 20 Mont. 457, 52 Pac. 84, 63 Am. St. Rep. 636; Beehler v. Ijams, 72 Md. 193, 19 Atl. 646; Moore v. Vaughn, 42 Neb. 696, 60 N. W. 914; Reed v. Estes, 113 Tenn. 200, 80 S. W. 1086; Meade Plumbing Co. v. Irwin, 77 Neb. 385, 109 N. W. 391; Carter v. Keeton (Va.) 71 S. E. 554.

On the other hand, the rule is very generally recognized and established that where the landlord binds the tenant to make substantial improvements upon the property, that he thereby constitutes the latter his agent within the meaning of the mechanics' lien law, and his property is subject to the lien for labor performed and material furnished in making such improvements under the contract with the tenant. Dougherty-Moss Lbr. Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405; Westport Lbr. Co. v. Harris, 131 Mo. App. 94, 110 S. W. 609; Curtin-Clark Hardware Co. v. Churchill, 126...