Stetson-Post Mill Co. v. Brown

• Decision Date: 04 December 1899
• Citation: 21 Wash. 619,59 P. 507
• Parties: STETSON--POST MILL CO. et al. v. BROWN et al.
• Court: Washington Supreme Court

59 P. 507

21 Wash. 619

STETSON--POST MILL CO. et al. v. BROWN et al.

Supreme Court of Washington

December 4, 1899

Appeal from superior court, King county; Frank T. Reid, Judge.

Action by the Stetson-Post Mill Company and others against Annie M Brown and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

John E Humphries, William E. Humphrey, Harrison Bostwick, P. C. Ellsworth, and Chas. E. Shepard, for appellants.

Bausman Kelleher & Emory, for respondent J. B. Parsons.

Preston, Carr & Gilman, for respondents.

DUNBAR J.

This is an action by the appellants, Stetson-Post Mill Company et al., against Annie M. Brown et al., respondents, to recover judgment for materials furnished for the erection of a building, and also to foreclose mechanics' liens upon the building and realty. On February 23, 1898, Amos Brown and his wife, Annie M. Brown, and James D. Lowman and his wife, Mary R. Lowman, were the owners of a certain lot situated in Seattle, and on that day they leased the same to Ida M. Cort. The lessee mortgaged the leasehold interest, together with any building which she should erect under the terms of the lease, to respondent Parsons, to secure the payment of money loaned her by him, which money was used to towards paying the cost of the building. Thereafter the lessee commenced the erection on the premises of a brick building, which was designed to be three stories in height, but after the erection of the first story a temporary roof was put over the basement or first story, and no further building was done. The lessee let a contract to one Jones to construct the building aforesaid, under the terms of which the lessee was to pay Jones in installments as the work progressed. The contractor, Jones, bought lumber from the appellant Stetson-Post Mill Company for use, and which was used, in the building, which lumber has not been paid for. The Seattle Gas & Electric Light Company furnished certain pipe fittings and light fixtures in the building, which have not been paid for. The intervener McDougall performed certain labor in plastering the basement of the building, which has not been paid for. This labor was performed under contract with the lessee. The interveners Brown and Westover, also under contract with the lessee, did the plumbing for the basement of the building, a part of which has not been paid for. The intervener Viele, also under contract with the lessee, performed certain labor in painting, a portion of which only has been paid for. Intervener Richards, under contract with the lessee, furnished certain materials and performed labor in placing the temporary roof on the building, a part of which only has been paid for. These several parties filed lien notices, and the Stetson-Post Mill Company commenced this action against the respondents for foreclosure of its lien, the several other claimants intervening to enforce their lien claims. The right of the several lien claimants to enforce their liens against the interest of the lessee in the premises is not disputed by the respondents, and they were awarded that right by the judgment of the court. The lien claimants, however, sought to impress their liens upon the fee; and it is also contended by them that their liens are prior to the lien of the mortgage in favor of Parsons. The court adjudged the lien of the mortgage a prior and superior lien.

It has been the uniform holding of this court, as indicated by the decisions in Iliff v. Forssell, 7 Wash. 225, 34 P 928; Lumber Co. v. Bolton, 5 Wash. 763, 32 P. 787; Mentzer v. Peters, 6 Wash. 540, 33 P. 1078; Z. C. Miles Co. v. Gordon, 8 Wash. 442, 36 P. 265; and Masow v. Fife, 10 Wash. 528, 39 P. 140,--that only the leasehold interest was subject to a lien for material furnished or labor performed. In fact, section 2 of chapter 24 of the Laws of 1893 especially provides 'that if such person [referring to the builder] own less than a fee simple in such land, then only his interest therein is subject to the lien.' The contention in this case arises over the construction of the statute which provides that every person performing labor upon or furnishing material to be used in the construction of buildings, etc., has a lien upon the same for the labor performed or materials furnished by each respectively, whether performed or furnished at the instance of the owner of the property subject to the lien or his agent; and provides, further, that every contractor, subcontractor, architect, builder, or person having charge of the construction, alteration, or repair of any property subject to the lien as aforesaid shall be held to be the agent of the owner for the purpose of the establishment of the lien created. It is contended that the lessee in the case at bar was the agent of the owner for the construction of this building, and it is insisted that the case falls within the rule announced by this court in Kremer v. Walton, reported in 11 Wash., at page 120, 39 P. 374, and afterwards, upon rehearing, in 16 Wash., at page 139, 47 P. 238. In the first opinion rendered in that case it was held that, where a building had been erected and paid for by a lessee under an agreement that the lessor would repay the cost thereof by allowing the retention of rents by the lessee, the interest of the owner, as well as that of the lessee, was subject to lien for work and material furnished for the building. We think that case can easily and logically be distinguished from the one at bar. That decision was rendered upon a contract between the lessee and lessor, which was introduced in evidence, or, rather, a letter, which contained the terms of the contract. There is was stipulated that the building which was to be erected by the lessee should be constructed under the supervision, and subject to the approval, of the lessor. The building was especially and minutely described, and its value fixed, and it was specified that the building was to be paid for by the lessee by applying the rental against the cost of the same. It was upon these conditions of the contract that that decision was rendered, and the court stated that if it had appeared that the building was to be erected by the lessee himself, his interest as such lessee would be all that could be subjected to the liens for work and materials furnished for said building; citing Z. C. Miles Co. v. Gordon, supra. 'On the other hand,' said the court, 'if, by the terms of the lease, the building was to be erected and paid for by the lessor, he would be the one who was erecting, even although the lessee was to have the direction and control of the erection. In our opinion, the terms and conditions of the lease were such that it must be held that the building was to be erected by the lessor.' It will be observed that the expression in the opinion, 'even although the lessee was to have the direction and control of the erection,' was purely other dictum, for, under the terms of the contract in that case, it was specially provided that the building was to be erected under the supervision,...