Stenberg v. Liennemann

• Citation: 52 P. 84,20 Mont. 457
• Parties: STENBERG v. LIENNEMANN et al.
• Decision Date: 07 February 1898
• Court: Montana Supreme Court

52 P. 84

20 Mont. 457

STENBERG v. LIENNEMANN et al.

Supreme Court of Montana

February 7, 1898

Appeal from district court, Silver Bow county; William O. Speer Judge.

Action by Oscar Stenberg against Louis Liennemann and Charles Schmidt, co-partners doing business as Liennemann & Schmidt and August Johnson and James Ryan, co-partners doing business as Johnson & Ryan, to enforce a mechanic's lien. From the judgment, plaintiff appeals. Affirmed.

This is an action to foreclose a mechanic's lien. It appears from the record that the defendants Liennemann & Schmidt co-partners, are the owners of certain town lots situated in Butte, upon which two buildings, used as saloons, were located; one of the buildings seemingly being situated in the rear, and adjoining the other. About the 1st of June, 1895 it appears that Liennemann & Schmidt leased the two buildings to the defendants Johnson & Ryan, to be used by the said lessees for the purpose of carrying on the saloon business. Johnson & Ryan then employed, it seems, the plaintiff and one F. Britton to do some work upon the buildings. The work this plaintiff did was that of calcimining, painting, paper hanging, and glazing certain portions of the saloon premises. The work which Britton did consisted of cutting a doorway between the two buildings, so as to connect them, and make them one building, and also in fastening to the wall and floor a bar and back bar, which were to be used in carrying on the business in the saloon; the bar and back bar being the property of the lessors. After the lessees had occupied the buildings and carried on their business for a short time, and after the work had been done thereon by the plaintiff and Britton, certain creditors of the lessees brought suits by attachment against them, and closed up their business. The defendants Liennemann & Schmidt were in no wise interested in these attachment proceedings, which resulted in Johnson & Ryan forfeiting their lease to the premises, as they were unable to thereafter pay the rent. The liens claimed in this case were filed by the plaintiff after Johnson & Ryan had forfeited their lease to the premises. Britton assigned his account to the plaintiff, who thereafter filed a lien upon the premises for his own work, and also as assignee of Britton, the pretended lien of Britton for his account for work on the premises having been filed by plaintiff, as assignee thereof. The case was tried by the court without a jury. The court found that no contract had ever been entered into by the plaintiff and Britton, or either of them, with the defendants Liennemann & Schmidt, the owners of the property upon which the lien is sought to be enforced for the work and labor which they, or either of them, did or performed thereon, but that the work and labor, and all of it, performed, and materials furnished, by plaintiff and Britton upon the premises, was so performed and furnished under a contract made with Johnson & Ryan, the lessees thereof, and that said lessees were alone liable to the plaintiff upon the accounts sued upon, and for which a lien is claimed; that the only interest Johnson & Ryan had in the premises was that of tenants, and that the plaintiff was not entitled to any lien upon the premises or buildings, or any part thereof, on account of labor performed by him or materials furnished by him or the said Britton. The court rendered judgment in favor of the defendants Liennemann & Schmidt for their costs against the plaintiff, and from this judgment the plaintiff appeals.

Carroll & Leehey, for appellant.

Chas. Mattison, for respondents.

PEMBERTON C.J. (after stating the facts).

Section 2133, Code Civ. Proc., provides as follows: "The lien given extends to the lot or land upon which any such building, improvements, or structure is situated, to the...