Perkins Supply & Fuel Service v. Rosenberg
| Decision Date | 15 November 1938 |
| Docket Number | 44463. |
| Citation | 282 N.W. 371,226 Iowa 27 |
| Parties | PERKINS SUPPLY & FUEL SERVICE v. ROSENBERG et al. (BRENTON LUMBER CO., Intervener). |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Frank S. Shankland, Judge.
Action in equity to establish and foreclose mechanics' liens for costs of improvements erected by tenants. The trial court refused to establish the liens as against the real estate of the landlord. The parties seeking establishment of the liens appealed.
Affirmed.
F. F Frost, of Des Moines, for appellant Perkins Supply & Fuel Service.
Isador Robinson, of Des Moines, for appellants Albert Rosenberg Esther Rosenberg, Fred Boye, Robert Grund, Hymie Wiseman Joseph L. Muilenburg, and Brenton Lumber Co.
Winfield W. Scott, of Des Moines, for appellant C. B. Crispin.
Guy A. Miller, of Des Moines, for appellants F. E. Jackson Sand & Coal Co.
McLennan & McLennan, of Des Moines, for appellees Frances and Jack S. Kingman.
On May 1, 1937, defendants Kingman leased certain premises they owned in Polk County to defendants Grund and Wiseman. Soon thereafter these defendant-lessees entered into an agreement with defendant Boye, under the terms of which Boye undertook to and did construct on the leased premises a building consisting of one room, in close proximity to an older building that was on the premises when the lease was made. A short flight of steps, covered with a canopy, afforded access from either building to the other. Plaintiff having furnished materials for the building Boye constructed, and having filed a claim for a mechanics lien for an unpaid balance of the account, brought this action to foreclose the alleged lien. Two intervenors and two cross-petitioning defendants, who likewise had furnished material or labor for the building and had filed claims for mechanics liens, sought by appropriate pleadings in this action to have their respective alleged liens also foreclosed. Defendants Kingman filed answers to all these pleadings including plaintiff's petition. Following a trial upon the merits the district court entered personal judgments against the defendant-lessees and defendant Boye in favor of plaintiff and the intervenors and cross-petitioners for the amounts due them respectively upon their accounts. The court also found and decreed that neither the plaintiff, nor the intervenors and cross-petitioners had any right to the establishment of their alleged mechanics liens as against the real estate of defendants Kingman on which the room was built, and that their claims for mechanics liens on the real estate were without equity. The plaintiff, intervenors, and cross-petitioners have appealed.
Appellants' complaint on this appeal is that the court erred in refusing to establish mechanics liens upon the real estate of defendants Kingman for the amounts of the respective judgments that were entered. Whether appellants were entitled to the establishment of such liens appears to have been the only controverted issue in the trial below.
In Queal Lumber Co. v. Lipman, 200 Iowa 1376, 206 N.W. 627, this court said [page 628]: That such is the law under section 10271 of the Code of 1935 there can be no question, and appellants so concede. Turning to the record, the evidence is that neither of the defendants Kingman had any communications, negotiations or contracts of any kind, with respect to the building of the room in question, with defendant Boye or with any of the appellants. The appellants make no claim that either of the Kingmans personally made any contract with Boye or appellants. What appellants do claim is that defendants Kingman had made the defendant-lessees the agents of the Kingmans to contract for the construction of the room, or at least the agents of the Kingmans to bind the real estate for the cost of the improvement. Whether the Kingmans had so done makes necessary a review of the evidence.
The real estate in controversy was a rectangular plot in section 12, Township 79, Range 25, Polk County, Iowa, the dimensions being 92.50 feet by 184.35 feet. It was located on a main highway, known in the record as the Merle Hay Road. The lease provided that the premises were to be used " for restaurant and dancing."...
To continue reading
Request your trial