Wallinder v. Weiss

• Decision Date: 22 November 1912
• Docket Number: 17,978 - (152)
• Citation: 138 N.W. 417,119 Minn. 412
• Parties: E. G. WALLINDER v. HARRY WEISS and Others
• Court: Minnesota Supreme Court

138 N.W. 417

119 Minn. 412

E. G. WALLINDER v. HARRY WEISS and Others

Nos. 17,978 - (152)

Supreme Court of Minnesota

November 22, 1912

Action in the district court for St. Louis county to recover $72.82 and to foreclose a mechanic's lien for that amount upon certain premises. Defendants Breen and Shea in their answer admitted their ownership of the premises, but denied that the improvements or alterations were ever authorized by them, or made at their instance, and alleged that plaintiff had due and legal notice that the alterations or repairs were not authorized by them, that they had given the statutory notice required by posting the same, and further that the so-called improvements were of a temporary character and were of no benefit to the premises or to the owners. Defendant Pomeroy in his answer admitted that he was a bona fide mortgagee of the premises before and during the time of the transactions mentioned in the complaint, and prayed that the action be dismissed as to him. The case was tried before Dibell, J who made findings and as conclusion of law ordered judgment in favor of defendants Breen, Shea and Pomeroy. Plaintiff's motion to amend the conclusions of law or grant a new trial was denied. From the judgment entered pursuant to the findings, plaintiff appealed. Affirmed.

SYLLABUS

Statutory notice against mechanics' liens.

A lessor may, by posting or giving notice as required by section 3509, R.L. 1905, prevent mechanic's liens from attaching to his interest, although in the lease he has given the tenant permission to make the alterations for which the lien is claimed, the tenant having agreed to pay for the alterations and to restore the building to its former condition at the end of the term.

John Jenswold, Jr., for appellant.

John Brown, for respondents.

OPINION

HOLT, J.

The defendants Breen and Shea, owners of a building in West Duluth, made a lease thereof to defendant Weiss for three years to be used as a theater. In the lease privilege was given the tenant, at his own risk and expense, to remove and safely store the plate glass and other windows in the front of the building and the front doors, and to change and remodel the front of the building in such manner as may be reasonably necessary and desirable for theater purposes. There was also a stipulation that the tenant was to restore the front to its original condition at the end of the lease that he should pay all bills for labor or material used in the building and keep it free from liens. The court found that before the beginning of the term of the lease Weiss entered upon the leased premises and commenced to make the changes, wherein plaintiff sold and furnished the required material. Within five days after knowledge that the work was being done, the owners posted and kept posted, in a conspicuous place on the premises, a notice to the effect that the improvement was not being made at their instance. Plaintiff not being paid, filed a lien, and in this action to foreclose the same the court held that he acquired no lien upon the estate of the owners Breen and Shea in the building.

Plaintiff's position is that since the owners in the lease permitted the alteration to be made by the tenant, they authorized the improvement under the provision of section 3509, R.L. 1905 and hence cannot, by notice, prevent liens from attaching to their interest. Upon an examination of our mechanic's lien law, it will be found that the right to a lien is based on the proposition that the improvement was made pursuant to a contract with or at the instance of the one whose interest is to be charged with the lien. Prior to the passage of Laws 1889, p. 313, c. 200, it was necessary to prove that the one whose interest was sought to be affected by a lien had contracted for the improvement. O'Neil v. St. Olaf's School, 26 Minn. 329. 4 N.W. 47. In the last named act we find the remedy extended so that a lien may be had where the improvement was made "at the instance of the owner," or his agent, etc. Althen v. Tarbox, 48 Minn. 18, 50 N.W. 828. And it was provided that the presumption should prevail that the improvement was made at the instance of the owner, unless he kept posted or gave written notice to those furnishing material or performing labor that the work was not done at his instance, essentially in the same manner as now found. In construing this section 3509 of the Revised Laws, it is to be remembered that the main purpose in preparing and adopting the Code was to embody the then...