Sosman v. Conlon

Rombauer, P. J. — The only question presented by this appeal is whether the trial court erred in declaring as a matter of law that, upon the facts appearing in evidence, the plaintiffs were not entitled to a mechanic’s lien. The defendant Conlon entered into a contract with the owners of certain property in the city of Springfield to erect on such property a four story brick building, the rear part whereof was to be formed into and used as a theater. Conlon’s contract with the owners (who are his codefendants herein) is not 'set out literally in the record, but it sufficiently appears that it included not only the construction of the building, but also the furnishing of the stage, stage fittings, curtains and scenery. Conlon sublet the furnishings of the stage fittings and scenery to the plaintiffs at the agreed price of $'3,700, which amount, as the evidence shows, was "the reasonable value of the work and material. The plaintiffs caused the scenery to be painted according to order, and caused it to be set in place, furnishing the proper slides, pulleys, etc., therefor. Touching their performance of the work contracted for there is no controversy. They received on account thereof the sum of $2,035, leaving the sum of $1,665 due to them on that account. For this latter sum, and also an additional — 29 — item of $55 subsequently ordered, tbe plaintiffs filed a mechanic’s lien in due time against the entire building, and the lot whereon the same was erected. The plaintiffs gave evidence tending to show the foregoing facts. The testimo ny was conflicting whether scenery painted for one theater could with equal effect be used in another. It is conceded that the stage was of standard size, and that there is no apparent obstacle to utilizing the curtains, wings, arches, and other paraphernalia on most modern stages, as all such stages are now constructed of standard dimensions. The testimony also substantially concedes that all the curtains, wings, arches, and other paraphernalia of the stage could be moved out of the building without injuring the structure as a mere building, and without seriously injuring the articles thus removed. The weight of the testimony is to the effect, however, that the removal of any of these articles would have a tendency to destroy the completeness of the structure as a theater, as all the articles thus furnished are but parts in making up a complete stage and its equipments. In actions to enforce a mechanic’s lien, where the facts are not conceded, the question of lien or no lien is one of the issues to be submitted to the jury and should be passed on by them. Williams v. Porter, 51 Mo. 441; Hall v. Johnson, 57 Mo. 521. The court, having admitted the lien account in evidence, could not thereafter as a matter of law declare that the plaintiffs were not entitled to a lien, unless it was conceded that the plaintiffs stood in no contractual relation with the owner, or that they had failed to comply with the statutory requirements as to filing their lien. This technical inaccuracy in the conduct of the trial, should, however, not lead to a reversal of the judgment, if it conclusively appears by the evidence that the plaintiffs’ — 30 — account contains unlienable items, which can not be segregated from the lienable items, or if it appears that, even if they can be thus segregated, the account is rendered intentionally excessive by embodying such items. This leads to the consideration of the only legal proposition, which may be regarded as a very close one under the evidence. The defendants contend that the great bulk of the items contained in the plaintiffs’ account are shown not to have been attached to the freehold, and are removable at pleasure without injury to the freehold and even without serious injury to the articles themselves. This, however, we consider not to be the true test of the nonlienable character of the articles. The question is not whether they composed integral parts of a building, but whether they were furnished and received with the intention of forming integral parts of a theater Indicting, it being conceded on all hands that the rear part of the main building was constructed with the sole view of being permanently used for the purposes of a theater. That this is a controlling element in determining the question of lien or no lien, is shown in the clear discussion of that subject by Judge Ellison, in Cooke v. McNeil, 49 Mo. App. 81, 84, 85. Decisions under the mechanics’ lien statutes of other states can furnish precedents by analogy only, as the lien laws of the various states are 'very different; yet, as far as they furnish any analogy, it would support the lien in this case. The code of Tennessee provides: “There shall be a lieú upon any lot of ground or tract of land upon which a house has been constructed, built or repaired, or fixtures or machinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the mechanic or undertaker, founder or machinist who does the work or any part of the work, or furnishes the materials, or — 31 — any part of the materials, or puts thereon any fixtures, machinery or material, either of wood or metal.” In Halley v. Alloway, 78 Tenn. 523, the question arose, whether this statute was broad enough to cover stage machinery, and the painting of scenery and curtains used for fitting up the stage, some of which were attached, and some not. The lien was upheld. The court said: “In getting up a theater the whole building, considered in reference to its uses, makes the house contracted for; all that serves to complete and furnish such a house for the purpose designed, makes up the house and is part of it when completed.” Now it is true that the Tennessee statute is broader than ours, but the reasoning that underlies the decision, when applied to our statute, would lead to the same result. Many of the articles furnished by the plaintiffs and embodied in their lien account were easily removable, but they may have nevertheless furnished integral parts of the theater building, and have gone to make up the house contracted for, when considered in reference to its uses. So in Dimmick v. Cook, 115 Pa. St. 573, it was-held that under the Pennsylvania statute, which gave a lien for the payment of all debts contracted “for work done or materials furnished for or about the erection” of a building, the contractor who furnished under one contract the heating, laundry and cooking apparatus, for a hotel when originally erected was entitled to a lien therefor, although part of the items thus furnished consisted of personal property easily removable, and in no way attached to the building. In Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, the rule in that state as between mortgagor and mortgagee is stated to be that whatever is placed in a building to carry out the purpose for which it was erected, and permanently to increase its value for occupation, or use, although it — 32 — may be removed without injury to itself, or the building, becomes part of the realty of it; and the proposition is supported by a great many authorities cited from the reports of that and other states. We deem it to be strictly within the spirit of the mechanics’ lien laws that, where such a lien is filed against the interest of the owner, the character of the item as a fixture and as a part of the freehold must be determined by the rules which govern the subject between vendor and vendee and mortgagor and mortgagee, and not by those which govern the subject in controversies between the landlord and the tenant. In that view it would admit of scarcely any doubt that the articles furnished by the plaintiffs would pass to the vendee or mortgagee in a conveyance of the theater building, as appurtenances thereto, without any special enumeration. As opposed to the view hereinabove relied on, the general proposition may be invoked that mechanics’ lien laws are passed on the theory that the mechanic has permanently parted with his work and material, and that the same has become attached to the freehold, and can therefore not be retaken by him in kind. But, while that view is entitled to weight, the other view is likewise entitled to consideration that, where the mechanic furnishes articles under an entire contract to fit a building for its designed purpose, he could not, under the strict rule which prevails in this state against splitting demands, enforce his claim as to part of his account without endangering his right to enforce it as to the residue. Touching the objection to the lien account, that it does not state the prices for each article separately, it will suffice to say that under the recent decisions in this state it is not essential to the validity of the account that this be done, where the contract is made for a — 33 — lumping price, which, is shown to be reasonable, and the items are stated in detail. Grace v. Nesbitt, 109 Mo. 19; Deardorff v. Roy, 50 Mo. App. 73. Although we consider the proposition as a close, one, both on principle and authority, we have reached the conclusion that the court erred in declaring as a matter of law that the plaintiffs are not entitled to a lien. The judgment is therefore reversed, and the cause remanded, to be proceeded with in conformity with this opinion. All the judges concur.