Security Stove & Mfg. Co. v. Stevens et al.

• Citation: 9 S.W.2d 808
• Decision Date: 11 June 1928
• Docket Number: No. 16315.,16315.
• Parties: SECURITY STOVE & MANUFACTURING COMPANY, RESPONDENT, v. WM. A. STEVENS ET AL., APPELLANTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeal of Missouri (US)

9 S.W.2d 808

SECURITY STOVE & MANUFACTURING COMPANY, RESPONDENT, v. WM. A. STEVENS ET AL., APPELLANTS.^*

No. 16315.

Kansas City Court of Appeals. Missouri.

June 11, 1928.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

AFFIRMED.

Joseph F. Keirnan for respondent.

Josephine Myers for appellant.

BLAND, J.

This is a suit by a sub-contractor to enforce a mechanic's lien on certain real estate owned by the defendant, situated in Kansas City, Missouri. The case was tried before the court without the aid of a jury. The court rendered judgment against the contractor, Egender, in the sum of $402.45 and adjudged that plaintiff have a mechanic's lien against defendant's property in that sum. Defendant has appealed.

This controversy is over the lienability of sixteen gas ranges or stoves sold by plaintiff to Egender for the purpose of being installed in defendant's property. The facts show that on March 15, 1924, defendant purchased two adjoining buildings in Kansas City, Missouri, and a year thereafter remodeled these buildings into at least twenty-three furnished room, or kitchenette, apartments. One of the buildings was remodeled so as to contain sixteen kitchenette apartments. There is no direct evidence as to the number of apartments in the other building but it is stated by defendant in his brief that the two contained twenty-five apartments. Defendant did not furnish all of the apartments at the beginning but at the time of the trial had furnished them all. During the period covered from the time he remodeled the property until he furnished all of the apartments, he rented some of the apartments unfurnished. Defendant testified that at the time of the trial there was but one apartment not rented as a furnished apartment but, evidently, it, too, had been furnished at one time and later converted into an unfurnished apartment because he stated that the stove or range had been taken out of this apartment. He testified that at the time of the trial not one of the tenants had brought his own stove with him.

The facts further show that sometime prior to August 20, 1924, defendant orally contracted with Egender to furnish twenty-three of the apartments. Defendant testified that he only furnished sixteen apartments at that time. However, there is an inference from the evidence that he did in fact furnish twenty-three of the apartments for about August 23rd or 27th, 1924, he gave a chattel mortgage to Egender for $7000 worth of furniture that went into the apartments, including twenty-three breakfast sets, twenty-three refrigerators, twenty-three bath cabinets, twenty-three bridge lamps, twenty-three gas ranges, twenty-three mirrors, twenty-three rockers, and various other articles, including twenty-two living-room suites, twenty-four rugs and twenty-two kitchen cabinets.

The chattel mortgage also covered dressers, settees, rockers, chests, linoleum, carpets, window shades, damask, and defendant testified that he also put in the apartments napkins, knives, forks, dishes, etc., so that people who moved into a furnished apartment were not required to bring any furniture with them. In other words, the apartment was completely furnished. He further testified that Egender furnished all of the gas ranges; that his agreement with Egender provided that the latter was to put this furniture into the apartments and defendant was to pay for them. There is no direct evidence as to how he was to make such payment. However, there was a note given by defendant to Egender for $7000, dated August 27, 1924, secured by said chattel mortgage.

The evidence further shows that plaintiff sold the sixteen ranges in controversy to Egender for the purpose of installment into defendant's apartments. They were delivered into the apartments by plaintiff on August 20, 1924. Plaintiff's evidence tends to show that it had done practically no business with Egender prior to this time, that it had sold him but one stove. The ranges were connected up with the gas pipes in the apartments by a union which had a shut-off in connection therewith, which shut-off permitted the gas to be disconnected from the ranges without unscrewing the union. The agreement between defendant and Egender did not provide that the latter should connect the ranges and they were in fact connected by defendant who employed a "gas man" to do the work. The contract between plaintiff and Egender was that Egender was to pay cash for the ranges, which from the evidence, we take to mean cash within ten days. The evidence further shows that the gas ranges in question were furnished to the property by plaintiff in reliance upon its right to a mechanic's lien.

Egender did not pay for the stoves but on October 13, 1924, he was adjudged a bankrupt. However, prior to that time he sold the note and chattel mortgage to W.A. Hawkinson of the Swedish American Savings & Loan Association. On June 13, 1925, defendant gave a deed of trust to said Savings & Loan Association upon the property in question, describing it by lots and blocks, which mortgage covered the gas ranges in question. Defendant paid the balance due upon the note secured by the chattel mortgage out of the proceeds from this deed of trust on the real estate. The mortgage provided that the whole of the bond secured by the deed of trust should "be subrogated for further security to the lien, though released of record or by prior encumbrance or vendee's (vendor's) lien on said premises paid out of the proceeds of this loan."

Defendant testified to the effect that the ranges in controversy were not purchased until after the remodeling of the premises had been completed but there was evidence on the part of plaintiff that the remodeling was in process when the stoves were delivered. Defendant also testified that he did not intend that the furniture, including the gas ranges, or stoves, placed in the building should become a part of the realty but his intention was that it should remain personal property.

Defendant insists that the court erred in adjudging that plaintiff was entitled to a lien on the real estate for the ranges in question; that the stoves never became a part of the freehold but remained personal property such as ordinary household furniture.

No declaration of law having been asked or given, if the judgment of the court can be sustained on any theory, it is our duty to uphold it. We cannot pass upon the weight of the testimony but if there is any substantial testimony to sustain the finding of the trial court, the same will not be disturbed on appeal. [Vette v. Hackmann, 237 S.W. 802; Kirschbaum v. Northwestern Petroleum & Refining Co., 237 S.W. 547.] The authorities are not uniform concerning the lienability of gas ranges. However, the mechanic's lien law must be liberally construed and in determining the character of a disputed item as a fixture and as a part of the freehold, the rules governing the subject between vendor and vendee and mortgagor and mortgagee are applicable and not those which govern the subject between landlord and tenant, [Sosmon v. Conlon, 57 Mo. App. 25, 32.] In Crane Co. v. Construction & Real Estate Co., 121 Mo. App. 209, 219, the court said —

"... a fixture of the class under discussion is made up of three elements, annexation, adaptation and intent. Of these in modern times the latter two are more important than the one relating to the method by which the chattel is attached to the freehold. Such annexation, though slight and easily displaced, will not prevent an article becoming a fixture which is adapted to the proper use of a building and which was placed therein by the owner with the intent of forming a part of the special object and design for which the building was constructed." [See, also, Randall v. LeBron Electric Works, 1 Fed. (2d Series) 313, 314.] In the Crane case, l.c. 220, the court said, quoting from a Pennsylvania case —

"`The clear tendency of modern authority seems to be, to give pre-eminence to the question of intention to make the article a permanent accession to the freehold, and the other tests seem to derive their chief value as evidence of such intention."

In Banner Iron Works v. Aetna Iron Works, 143 Mo. App. 1, 6, the court said —

"The principal criterion is the intention with which the owner of the land or building put the material into the building or on the land — whether his purpose was to make it permanently a part of the land or tenement. If this was his purpose, then, though it is fastened to the freehold only slightly and may be...