Morrow v. Merritt

• Decision Date: 28 March 1898
• Docket Number: 876
• Citation: 16 Utah 412,52 P. 667
• Court: Utah Supreme Court
• Parties: ANNIE E. MORROW, RESPONDENT, v. CHARLES C. MERRITT, DEFENDANT, AND GEORGE CALDER, APPELLANT

52 P. 667

16 Utah 412

ANNIE E. MORROW, RESPONDENT, v. CHARLES C. MERRITT, DEFENDANT, AND GEORGE CALDER, APPELLANT

No. 876

Supreme Court of Utah

March 28, 1898

Appeal from the Third district court, Salt Lake county. Jacob Johnson. Judge.

Action by Annie E. Morrow against Charles C. Merritt and George Calder to declare and foreclose a mechanic's lien. From a judgment for plaintiff defendants appeal.

Reversed.

Williams Van Cott & Sutherland, for appellant.

Brown &amp Henderson, for respondent.

Building contracts cannot be disguised under the name of lease or by the pretended relation of lessor and lessee. Burkitt v Harper, 79 N.Y. 273; Otis v. Dodd, 90 N.Y. 336; Barclay v. Wainwright, 86 Pa. St. 191; Woodward v. Leily, 36 Pa. St. 437; Cook v. Goodyear, 79 Wis. 606; Savoy v. Jones, 2 Rawle 350; Leiby v. Wilson, 40 Penn. 67; Schmaiz et al. v. Mead, 125 N.Y. 188.

Such attempts to evade a mechanic's lien are called by Boisot, "quasi leases," and by Phillips, "improvement leases." Boisot on Mch. Liens, Sec. 298; Phillips on Mch. Liens (2nd Ed.), Sec. 91.

The work was done and the materials furnished at the instance, and under the authority of Calder, within the meaning of this statute. See authorities above cited, also Otis v. Dodd (N.Y.), Hunn. 538; Congdon v. Cook, 55 Minn. 1; Ness v. Wood, 42 Minn. 427.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

This is an appeal from a decree for $ 770.76, and for costs against the defendant Merritt, and foreclosing a mechanic's lien upon the interests of both defendants in the real estate described, and the improvements thereon. A default was entered against the defendant Merritt. It appears that the fee was in the defendant Calder, and his co-defendant was his tenant; that he did not contract with the plaintiff for the materials or labor furnished by the plaintiff, or authorize any one to contract therefor; and he prosecutes this appeal from so much of the decree as declares the amount found due a lien on his interest. The evidence upon which the findings were made is not before us. Therefore the only question for us to decide is, do the findings authorize the decree?

The ninth finding is to the effect that the materials were furnished and the labor performed at the instance and request of both defendants, as shown by the lease made a part thereof. By the terms of the lease, the defendant Calder let the premises ordered sold to his co-defendant, for the term of the five years, for the sum of $ 12,000; $ 166.75 to be paid on the 1st day of each month during the first year, and $ 208.33 monthly during the second year, and annual payments of $ 2,500 during the remainder of the term. The tenant also covenanted to expend $ 2,500 in the erection of permanent improvements on the premises during the term, and, at its expiration, to deliver the same to the lessor in as good repair as when delivered, reasonable wear from use excepted. It does not appear that Calder authorized Merritt to make the improvements at his expense, or to furnish the materials or to perform the labor for him. The relation of principal and agent did not exist between them. Did the covenant in the lease that the tenant should expend $ 2,500 in permanent improvement on the premises give the contractor a lien upon the landlord's interest in the property, for the price of the materials and the compensation of the labor in question, furnished at the special instance of the tenant? The answer depends upon the meaning of the following provisions of section 1, p. 44, Sess. Laws, Ter. Leg. 1894: "Mechanics, material men, contractors, or sub-contractors or builders * * * performing labor upon or furnishing materials to be used in, the construction, * * * addition, or repair * * * of any building, * * * shall have a lien upon the property upon which they have * * * performed labor or furnished materials for the value of such * * * labor done or materials furnished, whether at the instance of the owner or any other person acting by his authority or under him, as agent, contractor or otherwise, for the work or labor done * * * or materials furnished * * * whether done or furnished * * * * at the instance of the owner of the building * * * or his agent: provided, that a lien, or liens shall attach only to such interest as the owner or lessee may have in the real estate." Under this lease the lien exists upon the interest of the reversioner when the materials are furnished or the services are rendered at his request, or upon the request of his agent or contractor. The request of the tenant is not sufficient, though he has bound himself to make improvements. It is otherwise when the statute creates a lien, as in some states, upon the interest of the owner of the reversion when he permits the tenant to make improvements or repairs upon his property, or when he knows of them and does not inform the person performing the labor or furnishing the materials that his property will not be responsible for...