Ward v. Nolde

• Decision Date: 26 May 1914
• Docket Number: No. 16417.,16417.
• Parties: WARD v. NOLDE et al.
• Court: Missouri Supreme Court

168 S.W. 596

259 Mo. 285

WARD v. NOLDE et al.

No. 16417.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

Rehearing Denied June 23, 1914.

1. MECHANICS' LIENS (§ 57)—OWNERSHIP OR POSSESSION OF LAND—"OWNER."

Under Rev. St. 1909, § 8214, providing that the entire land to the extent of one acre shall be subject to mechanics' and materialmen's liens to the extent of the title and interest owned therein by the owner of the building, erection, or improvement, and "for whose immediate use or benefit the labor was done or the things furnished," a person owning a building and the fee in the land is an "owner," regardless of whether the improvement was made for his "immediate use and benefit," since the

phrase "for whose immediate use or benefit the labor was done" enlarges rather than limits the word "owner."

2. MECHANICS' LIENS (§ 72)—CONSENT OF OWNER—"AGENT."

Under Rev. St. 1909, § 8212, giving mechanics, etc., liens on buildings, for work or materials furnished therefor under any contract with the owner, "or his agent," for a person to be an "agent," it is not necessary that he have authority to bind the owner personally for the improvement.

3. MECHANICS' LIENS (§ 72) — CONSENT OF OWNER—TENANT—"AGENT."

Though a tenant, as such, is not an "agent" of the owner within Rev. St. 1909, § 8212, giving mechanics liens on buildings for work or materials furnished under any contract with the owner or his "agent," yet he can be made "agent" so as to enable him to bind the property by such lien.

4. MECHANICS' LIENS (§ 72)—CONSENT OF OWNER—TENANT—"AGENT."

Where a landlord binds a tenant to make substantial improvements upon the property, he thereby constitutes him his agent within Mechanic's Lien Law, Rev. St. 1909, § 8212, creating liens in favor of persons furnishing labor or materials, under any contract with the owner or his "agent."

5. MECHANICS' LIENS (§ 72) — CONSENT OF OWNER—TENANT.

The fact that the owner of a building consented to the making of improvements by the tenant does not constitute the tenant his agent within Mechanic's Lien Laws, Rev. St. 1909, § 8212, giving a lien for work performed or material furnished under any contract with the owner or his "agent."

6. MECHANICS' LIENS (§ 315) — INDEMNITY AGAINST LIENS — CONTRACTOR'S BOND — CONSTRUCTION.

A bond executed by a contractor, conditioned to protect and save harmless the owner of the building against all costs, liens, claims, and damages arising out of such construction work, only protected the owner against liens of materialmen or subcontractors, and not from a lien in favor of such contractor.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action to establish mechanic's lien by Edward Ward against John T. Nolde and John O'F. Delany. Judgment for plaintiff and defendant Delany appeals. Affirmed on condition that plaintiff enter a remittitur.

This is a suit to establish a mechanic's lien against a certain tract of ground and building, located at the southwest corner of Tenth and Locust streets, in the city of St. Louis, Mo. Appellant Delany is the fee-simple owner of the real estate sought to be subjected to the mechanic's lien. In 1907, appellant Delany executed to defendant Nolde a 20-year lease on the five-story brick building located on said premises, and provided in said lease that Nolde should make and construct certain substantial alterations and improvements in said building. That portion of the lease applicable to the issues here was as follows:

"Said party of the second part agrees to pay as rental therefor, for a term of 20 years, to commence on the first day of January, 1908, the sum of $20,000 net per year for the first ten years and $24,000 net per year for the remaining ten years of said term, payable in gold coin of the United States of America of the present standard of weight and fineness, or at the option of the lessor, its equivalent, in equal quarterly installments in advance on the first day of January, April, July and October, of each and every year during said term of 20 years. As additional rent for said premises, the lessee is to pay all taxes both general and special, for the year 1908 and thereafter, which may be levied, assessed or imposed against said property during the term of this lease. Lessee shall and will deliver to lessor his bond to the amount of $20,000 in the Banker's Surety Company, of Cleveland, Ohio, to be held by lessor as security to guarantee to said lessor a performance by said lessee of all the covenants and conditions herein contained, to remain until the alterations, additions and all changes in first floor and all other parts of building shall be completed, and that the sum of $20,000 shall be expended for such alterations, additions, and changes to the satisfaction of the party of the first part; and said lessee, not being in default in performance of any of the conditions and covenants of this lease, said bond shall be returned to said lessee. In case said Banker's Surety Company should fail or go out of business for any reason, the lessee shall furnish an additional bond to take place of said Banker's Surety Company's bond, and said bond shall be satisfactory to lessor, and additional bond shall be furnished lessor for the amount above agreed upon. Lessee shall submit plans, drawings and specifications for alterations, additions and changes in building to lessor, for his approval, on or before January 1, 1908, and said alterations, additions and changes, must be satisfactory to lessor. Lessee shall, within ten days from the first day of January, 1908, begin and continue the alterations, additions and changes, in said building, until it is complete, and the sum of $20,000 is expended and paid out for said work.

"On or before January 1, 1908, and before commencing removal of stone, brick and steel columns, now supporting building on first floor, for the purpose of putting in new steel columns in place of columns now supporting building, lessee shall and will deliver to lessor his bond to the amount of $40,000, or bonds in such sum and with such security or securities as may be satisfactory to and approved by lessor, conditioned to hold lessor harmless against damage or loss of any kind whatsoever arising out of the removal of said columns in building, and the construction of all alterations and putting in new columns, as well as against costs, liens, claims, and demands of whatsoever kind and nature arising out of such removal of parts of building, and the construction of new parts of building. Any failure to pay each quarterly advance rent when due, and all taxes, insurance, and the fulfillment of all other covenants and conditions herein contained and agreed by lessee shall produce a forfeiture of this lease, if so determined by lessor or his successors."

The lease further provided:

"All alterations, additions and changes made on building by lessee shall be a part of the building and shall revert to the lessor at the expiration of this lease. Said lessee further covenants and agrees, at the termination of this lease, by limitation or forfeiture, to quit, surrender and deliver up to the lessor possession of the building and premises with all improvements thereon, all of which shall be and remain the property of the lessor."

Pursuant to the provisions of said lease contract, Nolde procured to be made the plans and specifications covering said alterations and changes, and entered into a contract with plaintiff, Ward, by which plaintiff agreed to furnish the labor and material for said alterations and changes. Said lease was duly recorded, and plaintiff read the same, and was fully acquainted with its provisions prior to entering into the contract with Nolde to do said improvement work. Defendant Nolde went into possession of said building under said lease on January 1, 1908, and a day or two later plaintiff began the work of making the alterations and changes, under his contract. After the work had progressed a few days, it was discovered that, by reason of the way the building was originally constructed, one or two changes would have to be made in the plans and specifications, and supplemental plans and specifications were made relative thereto. Both the original plans and specifications for the alterations and changes, and also the supplemental plans and specifications above mentioned, were shown to appellant Delany before the construction work was begun, and, as provided by the lease contract, Delany approved the plans and specifications and indorsed his approval thereon by signing his name on each page of said plans and specifications. The construction work provided for by the said original and supplemental plans and specifications was fully completed by plaintiff, and the evidence shows that the reasonable value of the work called for in said plans and specifications was $22,975.31. During the progress of the work, defendant Nolde, the tenant, desired to have alterations and improvements placed in the building in addition to those provided for in the plans and specifications, and contracted with the plaintiff for the furnishing of said extra improvements. The total cost of construction work done by plaintiff amounted to $30,284.08. Deducting the above amount of $22,975.31, the total cost of the work called for by original and supplemental plans and specifications, from the sum of $30,284.08, the cost of total work done, we find that the cost of the extras amounted to $7,308.77. Of the extra items, the most important was a sprinkler system, costing $5,286.50. There is some evidence to the effect that appellant Delany was told by defendant Nolde that he (Nolde) was going to install the sprinkler system in the building, and that in reply to this, Delany said, "It would be a splendid thing." Plaintiff completed the construction work about June 9, 1908. A day or two later the building was inspected by Nolde's architect and by appellant Delany, and at this...