Mulcahy Lumber Co. v. Ohland

• Decision Date: 15 October 1934
• Docket Number: Civil 3401
• Citation: 44 Ariz. 301,36 P.2d 579
• Parties: THE MULCAHY LUMBER COMPANY, a Corporation, Appellant, v. O. A. OHLAND, Jr., HOWARD DOUGLAS, JOHN H. MARTIN, as Administrator of the Estate of JOSEPHINE B. MARTIN, Deceased, JOHN H. MARTIN, MADGE MARTIN McELHINEY, WILLIE MARTIN HAZELETT and JACK B. MARTIN, Appellees
• Court: Arizona Supreme Court

36 P.2d 579

44 Ariz. 301

THE MULCAHY LUMBER COMPANY, a Corporation, Appellant, v. O. A. OHLAND, Jr., HOWARD DOUGLAS, JOHN H. MARTIN, as Administrator of the Estate of JOSEPHINE B. MARTIN, Deceased, JOHN H. MARTIN, MADGE MARTIN McELHINEY, WILLIE MARTIN HAZELETT and JACK B. MARTIN, Appellees

Civil No. 3401

Supreme Court of Arizona

October 15, 1934

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Mr Samuel L. Pattee, for Appellant.

Messrs Conner & Jones, for Appellees.

OPINION

LOCKWOOD, J.

Mulcahy Lumber Company, a corporation, hereinafter called plaintiff brought suit against O. A. Ohland, Jr., and Howard Douglas and also against John H. Martin, as administrator of the estate of Josephine B. Martin, deceased, John H. Martin, in his individual capacity, Madge Martin McElhiney, Willie Martin Hazelett and Jack B. Martin, the last five named being hereinafter called defendants. The action sought a personal judgment against Ohland and Douglas for material and labor furnished for the completion of a building contract between the two, and a judgment against defendants fixing a lien on certain real estate in Tucson owned by them, on which the materials had been used and the labor applied. A personal judgment was rendered against Douglas, but the lien was denied, and from the judgment in favor of defendants, plaintiff has appealed.

The facts necessary for a determination of the case are not disputed and may be stated as follows: In 1930 defendants were the owners of certain real estate in Tucson. On November 1st of that year they leased it to O. A. Ohland, Jr. The lease was for one year from November 5th, with an option of renewal for another year at an increased rent, and followed the usual form, with provisions against subletting, etc., and then continued with the following condition:

"It is hereby agreed and understood, by and between the parties hereto, that the parties of the first part shall grant possession of the above premises to the party of the second part upon the execution of this lease, said grant being for the purpose of making necessary alterations in said building to adapt it for use as indoor golf course and said parties of the first part hereby grant to the party of the second part the right to make said alterations, provided the partitions of the storeroom known as 187 North Stone Avenue are not disturbed and that said alterations and improvements of said building shall be made at the sole expense of the party of the second part.

"Provided that the alterations so made by the second party do not weaken or impair roof supports, or removal of office rooms."

Ohland went into possession and contracted with Douglas to remodel the building for an indoor golf course. Douglas carried out the contract, and plaintiff furnished him material of the value of $1,213.25, which was used in the work. The enterprise was a failure and Ohland surrendered his lease, and the property was taken over by defendants, who removed the golf course and disposed of the material. A notice of lien was filed and perfected by plaintiff in due course, and thereafter this suit was brought.

There is but one question before us and that is whether on these facts the lien is good against defendants' interest in the realty. We have held repeatedly that ordinarily a lien for material used on leased premises by the lessee is not good against the interest of the lessor, even though the latter may have known of, or even acquiesced in, the use of the material, except when the facts are such as to show the lessee acted as agent of the lessor in ordering the material. Eaman v. Bashford & Burmister, 4 Ariz. 199 37 P. 24; Gates v. Fredericks, 5 Ariz. 343, 52 P. 1118; Hadley Co. v. Cummings, 7 Ariz. 258, 64 P. 443; Griffin v. Hurley, 7 Ariz. 399, 65 P. 147; Bogan v. Roy & Titcomb, 10 Ariz. 237, 86 P. 13; Harper v. Independence Dev. Co., 13 Ariz. 176, 108 P. 701; Foltz v. Noon, 16 Ariz. 410, 146 P. 510; Oceanic G.M. Co. v. Steinfeld, 16 Ariz. 571, 147 P. 717; DeMund Lumber Co. v. Franke, 40 Ariz. 461, 14 P.2d 256.Nor is this general rule criticized by plaintiff. Its contention is that the facts above bring the case within the exception stated. In support of this, our attention has been called to many cases. Some of these are not in point. In others the statute on which they are based differs widely in its terms from ours. In most of those where the statute is similar to ours the substance of the decisions seems to be that where a tenant is compelled by the terms of his lease to make certain improvements, he is, as a matter of law, thereby created the agent of the lessor for that purpose, so far as the lien...