McGuinn v. Federated Mines & Milling Company
| Decision Date | 04 December 1911 |
| Parties | W. H. McGUINN, Appellant, v. FEDERATED MINES & MILLING COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
F. M Cummings for appellant.
(1) By virtue of the provisions of the lease in evidence the sub-lessee of defendant as to the substantial improvements contemplated, provided for, directed and procured became the representative, the agent, or alter ego of defendant and plaintiff became entitled to his lien upon the property (boiler etc.) repaired and improved. Westport Lbr. Co. v Harris, 131 Mo.App. 94; Lbr. Co. v. Churchill, 114 Mo.App. 578, 104 S.W. 478; Curtin Hdwe. Co. v Churchill, 126 Mo.App. 462; Price v. Merritt, 55 Mo.App. 640; Sawyer Co. v. Clark, 172 Mo. 588; Winslow Bros. v. Mason Co., 169 Mo. 236; Morrison v. Hancock, 40 Mo. 561; Seaman v. Paddock, 51 Mo.App. 465; Lumber Co. v. Nelson, 71 Mo.App. 110; O'Leary v. Roe, 45 Mo.App. 567; Koenig v. Mueller, 39 Mo. 165. (2) As to the general law, supporting the position and holdings of the Missouri courts, as recorded in the above citations, we cite, to be used if desired, decisions of the United States Supreme Court and of other states of the American Union, as follows: Moore v. Jackson, 49 Cal. 109; Weker v. Weatherly, 34 Md. 656; Blake v. Pitcher, 46 Md. 453; Bohn Mfg. Co. v. Kountz, 12 L.R.A. (Neb.) 33; Henderson v. Connally, 123 Ill. 98; Wilverding v. Offineer, 87 Iowa M. 475; Paulsen v. Manske, 126 Ill. 72, 18 N.E. 275; Hough v. Collins, 176 Ill. 188, 52 N.E. 847; Sheurer v. Wilder, 56 Kan. 252; Cannin v. Helfrick, 99 Ind. 164; Shopleigh v. Hull, 21 Colo. 419, 41 P. 1108; James v. Osborne, 108 Iowa 409; Gaman v. Bushford, 37 P. 24.
Spencer, Grayston & Spencer for respondent.
(1) The lease in this case did not require the lessee to do more than to maintain the property in substantially the condition which existed at the time of the leasing, and the plaintiff's petition and lien statement show that the boiler was merely repaired and that the work was done solely upon the request of the lessee. Daugherty Lbr. Co. v. Churchill, 144 Mo.App. 584. (2) Before plaintiff can establish a lien he must show that the work was done "under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor. R. S. 1909, sec. 8212.
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 enclosing 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 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 (sec. 8212) gives the laborer and material man 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, 52 P. 84, 63 Am. St. Rep. 636; Beehler v. Ijams, 72 Md. 193, 19 A. 646; Moore v. Vaughn, 60 N.W. 914; Reed v. Estes, 80 S.W. 1086; Meade Plumbing Co. v. Irwin, 109 N.W. 391; Carter v. Keeton, 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 Mo.App. 462, 104 S.W. 476; Kremer v. Walton et al., 47 P. 238; Carey-Lombard Lbr. Co. v. Jones et al., 58 N.E. 347; Whitcomb v. Gans, 119 S.W. 676; Boisot on Mechanics' Liens, sec. 290; 27 Cyc. 58.]
Boisot says: "Where a tenant contracts with his landlord to build or repair buildings for compensation to be made by the landlord, either in money or the occupation and use of the premises, the tenant is the landlord's agent." But a general covenant on the part of the tenant to keep the premises in repair, does not make him the agent of the landlord so as to bind the latter's estate for repairs furnished by the direction of the tenant.
In the Winslow case, supra, our Supreme Court said:
In the notes to Belnap v. Conden, 23 L.R.A. N.S. 601, the authorities are collected and digested, and from them it clearly appears that the landlord's interest in the premises is not liable for ordinary repairs ordered by the tenant, whether under his legal duty to keep the premises in repair, or under a general covenant to that effect in the lease.
In New York the statute authorizes a lien where the work was performed or the material furnished under a contract with the owner, or by his consent, and even under such a statute, the courts of that state hold that in a lease wherein the tenant expressly agreed to keep the premises in good order and repair during the term, and at his own cost and expense, the landlord is not liable under a contract for repairs made by the tenant. [Aetna Elevator Co. v. Deeves, 108 N.Y.S. 718, same case, 110 N.Y.S. 124.]
By the terms of the lease in question, we are informed that the premises were in first class condition at the time the lease was made, and there is nothing in the lease requiring the tenant to make any improvements upon the property. He is only required to keep the property in its then first class condition, and in case any...
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