Pond & Hasey Co. v. O'Conner

• Decision Date: 02 December 1897
• Citation: 73 N.W. 159,70 Minn. 266
• Parties: POND & HASEY CO. v O'CONNER ET AL.
• Court: Minnesota Supreme Court

70 Minn. 266

73 N.W. 159

POND & HASEY CO.vO'CONNER ET AL.

Supreme Court of Minnesota.

Dec. 2, 1897.

(Syllabus by the Court.)

1. Evidence held sufficient to justify a finding that a certain heating plant put into a building by a tenant was, as between him and the landlord, a part of the realty.

2. Rule applied that payments made on one continuous account, consisting of several items, but constituting but one debt, must be applied on the account according to the priority of time; that is, the first item on the debit side is discharged or reduced by the first item on the credit side.

3. This rule is not altered by the fact that some of the items are secured because the subject of a mechanic's lien, while others are not. An application of a payment once lawfully made by either party is final and conclusive, and the law will not disturb such application.

Appeal from district court, Hennepin county; Robert Jamison, Judge.

Action by the Pond & Hasey Company, a corporation, against Thomas O'Conner, Henry W. Gibson, August Cederstrand, and others, to enforce a mechanic's lien. August Cederstrand, answering, claimed a like lien against his co-defendants. Finding for plaintiff and August Cederstrand. From an order denying a new trial, defendants Gibson and Wyman appeal. Affirmed as to plaintiff, and remanded as to August Cederstrand, with directions.

Howe Paige, Judson L. Wicks, and Welch, Hayne & Hubachek, for appellants.

Salmon & Grotte and Robert Christensen, for respondents.

MITCHELL, J.

This action was brought by the plaintiff to enforce a mechanic's lien for labor performed and material furnished in putting a heating plant into a building owned by the defendants Gibson and Wyman, and by them leased to the defendant O'Conner. The plaintiff's contract for putting in the plant was with the lessee, and the object of the suit was to subject to the lien the interest of the owners or lessors, as well as of the lessee, in the property. The defendant Cederstrand answered, claiming a like and co-ordinate lien on the property for labor performed and material furnished for the lessee in altering and remodeling the building. The court held that both plaintiff and Cederstrand were entitled to liens for part of their respective claims on the interests of both lessors and lessees in the property. This appeal is by Gibson and Wyman, the owners and lessors. Counsel for the appellants discuss in their brief some questions which are not covered by the assignments of error, many of which are very general and indefinite. We find no assignments of error which reach the question whether, assuming that the claimants were entitled to liens on the leasehold interest of O'Conner, the interest of the appellants was also subject to such liens. Several of the assignments of error which were possibly intended to challenge the sufficiency of the evidence to justify the findings of fact merely raise the question whether certain conclusions of law were justified by the findings of fact.

As respects plaintiff's claim, the only important question is that raised by the third assignment of error, to wit, that “the court erred in finding that the said heating plant is so affixed to the realty as to have become a portion thereof, and that it was never the intention of the parties that it should or could be removed by the tenant.” And the only question raised by this assignment is whether, as between the lessors and lessee, this plant became a part of the realty; counsel's position seeming to be that if, as betweenthose parties, the plant did not become a part of the realty, the plaintiff would not be entitled to any lien at all. Assuming, without deciding, this to be the law, we are of opinion that the finding complained of was justified by the evidence. Whether an annexation is a removable fixture or a permanent and immovable part of the realty is largely a question of fact, depending upon the nature of the article annexed, the relation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation was made. It appeared that this plant was substituted for a prior...