Weis & Jennett Marble Co. v. Rossi

• Decision Date: 06 November 1917
• Docket Number: No. 14753.,14753.
• Court: Missouri Court of Appeals
• Parties: WEIS & JENNETT MARBLE CO. v. ROSSI.

198 S.W. 424

198 Mo. App. 35

WEIS & JENNETT MARBLE CO. v. ROSSI.

No. 14753.

St. Louis Court of Appeals. Missouri.

November 6, 1917.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Suit by the Weis & Jennett Marble Company, a corporation, against William W. Gardiner and Simon D. Rossi. From a judgment of the justice of the peace, defendant Rossi appealed to the circuit court, where there was judgment for Rossi, and plaintiff appeals. Reversed and remanded, with directions.

Earl M. Pirkey, of St. Louis, for appellant. George W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for respondent.

BECKER, J.

This is a suit to enforce a mechanic's lien originating in the justice of the peace court in the city of St. Louis. From a judgment for plaintiff an appeal was taken to the circuit court by Simon D. Rossi, the owner of the property, one of the defendants, the other defendant, William W. Gardiner, lessee, did not appeal. The case was twice tried in the same division of the circuit court, but by different judges, each time without the intervention of a jury. On the first trial of the case de novo in the circuit court, judgment was rendered for the defendant. Later the trial judge set this judgment aside and granted a new trial. On the retrial a judgment was rendered in favor of Rossi, the only defendant who had appealed. In due course plaintiff brought this appeal.

The facts in the case are undisputed. In 1912, Simon D. Rossi, defendant below, respondent here, was the owner of an office building located at the northeast corner of Kingshighway and Delmar Boulevards in the city of St. Louis, Mo., five stories in height. The first floor of the building was subdivided into stores, and the rooms of the four floors above, each floor containing 28 rooms, were rented to various tenants for offices. In the early part of the year 1912 defendant Rossi, the owner of the building, entered into a contract of lease with defendant Dr. William W. Gardiner, which lease was for a period of two years, and provided that Gardiner should occupy rooms 217 and 218 as offices for the practice of dentistry. Under the terms of the lease Gardiner was entitled to janitor and elevator service. The lease also provided as follows:

"Lessor agrees to place partitions and make such alterations as are indicated upon a plan prepared by the architect and signed by both parties and to include a tile floor in the two smaller rooms, and subdivide room 217.

"The lessee agrees to make all other alterations in the way of marble paneling and decorating (italics ours), and to furnish complete room 218 as a waiting room to be used, if necessary, by future tenants who may lease rooms adjoining on the west and north upon terms agreeable to both parties.

"The lessee shall quit and surrender the premises at the end of the term in as good condition as the reasonable use thereof will permit, and shall not make any alterations, additions, or improvements in the premises, without written consent of the lessor, and all alterations, additions, or improvements which may be made by either of the parties hereby upon the premises shall be the property of the lessor and shall remain upon and be surrendered with the premises as a part thereof at the termination of this lease." (Italics ours.)

While Gardiner was in possession of the rooms numbered 217 and 218 under his lease, he made an oral contract with the plaintiff to do the marble work, paneling, decorating, and altering of room 217. This work amounted to $110.25. No part thereof was ever paid. Plaintiff duly served notice on the defendant Rossi, the owner of the building, then a lien was filed, and notice of suit given. Thereafter in due course suit was brought against said Gardiner and Rossi and a lien asked on the materials furnished and on the building and the lots on which it is situated and on the lease and licensed interest of defendant Gardiner therein.

The principle is laid down that a lessor by binding his lessee to make improvements of substantial benefit upon the demised premises, thereby constitutes the lessee his agent, within the meaning of the Mechanic's Lien Law, and may thereby subject his property to a lien for labor performed and materials furnished in making such...