Philip Carey Co. v. Kellerman Construction Co.

REYNOLDS, P. J. (after stating the facts). Counsel for the parties have presented very elaborate ■briefs and arguments in support of their respective contentions, counsel for appellant, in particular, raising many points and indulging in an exceedingly ingenuous argument in support of his contentions. We do not consider it necessary to go into these arguments in detail. After all, the points for decision are few and simple. We have made rather an elaborate statement of the facts, setting out the material parts of both leases, that to Badaracco with considerable detail, because we think that a consideration of the leases, in tbe light of the very recent decision of our Supreme Court [357] in Ward v. Nolde et al., not yet officially reported, but see 168 S. W. 596, and of tbe cases from the Courts of Appeals therein cited determines the questions. In Ward v. Nolde, supra, the learned Commissioner who wrote the opinion has quoted from Curtin-Clark Hardware Co. v. Churchill, 126 Mo. App. 462, 104 S. W. 476, at some length and also the very terse statement of Judge Gray in McQuinn v. Federated Mines & Milling Co., 160 Mo. App. 28, 141 S. W. 467. He also cites and quotes from O’Neil Lumber Co. v. Greffet, 154 Mo. App. 33, 133 S. W. 113. In these cases we find the rule laid down as applicable to cases arising under our mechanic’s lien law, particularly section 8234, Revised Statutes 1909, to be to the effect that where the landlord binds the tenant to make substantial improvements upon the property, he thereby constitutes the latter his agent within the meaning of the mechanic’s lien law and thereby may subject his property to the lien for labor performed and material furnished in making such improvements under a contract with the tenant. But it is the settled law in this State, as shown by those decisions, that the mere relation of landlord and tenant, does not, in itself, create an agency in the tenant, authorizing him to bind the interest of the landlord in the property. That obligation must spring from contract, express or implied, between the landlord and tenant, and apart from the mere relation of landlord and tenant. With the lease from Kellerman Contracting Company to Langan and the sublease from Langan to Badaraeeo before us, we find no words that can be construed into constituting either the tenant or the subtenant the agent of the owner in making improvements. Throughout both leases it is apparent that there is a mere permission given to the tenants to make improvements, alterations and repairs; in some contingencies, a promise of the landslords to niake them; but no contractual obligation on the part - of the tenant or sub [358] tenant to make them. It is true that the landlords in each case have contracted to reimburse the tenant and subtenant, to a certain extent, for alterations, additions or improvements they may make on the premises. This, however, falls far short from constituting the tenant or the subtenant agents of these landlords. It may be that in a proper action the materialman or contractor might become subrogated to the right of the tenant for compensation for material furnished or work and labor done on the premises, but that is not this case. So far, then, as either the tenant Langan or the subtenant Badaracco being the agents of their respective landlords or of either of the landlords, we hold, on authority, that they were not. But it is said that under the lease from Langan to Badaracco, the architect, Paulus, became the agent of Langan in respect to work done in the roofing over the construction of which roofing this controversy arises. The clause in the lease which we have quoted is relied upon for support of this claim. When we examine that clause carefully and.consider it in connection with the other provisions of this sublease, as we are bound to do, we are unable to sustain this claim of the learned counsel for appellant. It is true that it is there provided .that the architect “shall superintend all of the work done under this agreement, and shall let all contracts in such capacity.” Considering that clause in connection with the other provisions of this sublease, its meaning is clear. The lessee was to do certain things in connection with the alteration of the gravel roof into a roof suitable for a roof garden; the lessor was to do certain things, for instance to in-. stall certain appliances, and the architect is invested with power to let the contracts calling for the doing of these things, it being agreed that his decision as to the manner and how such work shall be done “shall be final and binding upon both parties hereto.” As we read this, the word ‘ ‘ each” would have more accurately [359] -expressed the plain.intent of the parties than does the word “both.” The obvious meaning of it, as it seems to. us, is that if the lessor selected or directed work to be done, then, as to that work, the letting of the contract for it, whether it was done as contracted for, its cost, the conclusion of the architect was binding on the lessor. So also as to work which the lessee was to do and which he had done through the architect.' In short, the architect, was the agent of the party for whom he acted, and neither could challenge his acts or conclusions. That this was the understanding of the parties is clear by the manner in which the pro-posal for which this particular work was made and accepted. The proposal, as we have noted, is addressed to the architect. It starts out with the statement that plaintiff company proposed to furnish and apply a certain kind of roofing ou the Langan & Taylor Building “for Jos. Badaraeco, for the sum of $4 per square.” It was accepted by the architect, not in the names , of Langan and of Badaraeco, but in the name of Jos. Badaraeco, Jr., alone. So that it is clear that in this particular instance the architect was acting for Badaracco alone and did not purport or undertake to act for or bind Langan. There is nothing whatever in the lease or in the acts of the parties to show that Langan had anything to do with this contract, or that in accepting’ this bid of plaintiff company the architect was acting as his agent. We find nothing in the Badaracco lease or in the acts of the parties from which the conclusion can be drawn that the architect in accepting the bid of plaintiff, appellant here, whs acting for any one other than Badaraeco. Beyond all question the architect was in no sense the agent of acting for Langan, much less was he a subagent of Keller-man Contracting Company. This disposes of the only points in this case that we consider necessary to determine. [360] Learned counsel for appellant make several assignments of error as to the introduction and exclusion of testimony, one of which we have notéd as the chief. The trial was before the court without a jury. Examining all of the testimony and the action of the trial court on its admission and exclusion, we cannot say that he committed any reversible error prejudicial to appellant. The conclusion he arrived at in finding for plaintiff is supported by substantial testimony and as we think on a correct application of the principles of law which must govern this case. The judgment of the circuit court is affirmed. Nortoni and Allen, JJ., concur.