97 P. 111 | Utah | 1908
The appellant instituted this action to foreclose a mechanic’s lien. In his complaint he in substance alleges that ■ the respondents were indebted to> him in the sum of $218.61 for a balance due for. certain materials furnished by him to them at their special instance and request, to be used in the
Upon a hearing the court found the facts to be substantially as follows: (1) That the respondent Mrs. Lizzie Condon was not indebted to the appellant in any sum. (2) That she was at all times mentioned in the complaint the owner in fee of the premises set forth in the complaint; that she at no time requested the appellant, or any one acting in his behalf, to furnish any material for the purposes of erecting a building upon the premises described in the complaint. (3) That on the 4th day of August, 1904, said Lizzie Condon entered into an agreement with the respondent Becker and wife, whereby she sold the premises described in the complaint to said Beckers, and upon the payment of the purchase price she agreed to convey the same to them by proper deed of con- ^ eyance. (4) That no part of the purchase price was paid upon said agreement. (5) That at and for a long time prior to- the time that said material was furnished said Lizzie Condon was the owner in fee of said premises, and that during all of said time the deed evidencing the title in her was
The appellant now insists that the court erred in making findings 1, 2 and 6 upon the ground that the evidence does not support such findings, or any of them. The evidence upon which these findings, are based, briefly stated, shows that some time in July, 1904, the respondent Becker and his wife orally agreed to purchase the premises in question from the respondent Lizzie Condon for the agreed price of $625. On the 1st day of August following Lizzie Condon entered into a written contract with said Becker and his wife, whereby she agreed to convey said real estate to said Beckers upon the payment of said sum of $625, $25 of which was to be paid then, and the remainder on the 1st day of August, 1909, with interest at 6 per cent, per annum. It further appears from the evidence that the respondent Becker is a carpenter, and at the time of the purchase told Mrs. Condon that he wanted to build a shanty upon the property during the fall of 1904, and that he intended to build a better house on it the year following; that he said he had made arrangements with a Mr. Scowcroft for the lumber to put up the shanty; that, instead of getting lumber from Mr. Scowcroft, Becker in July or August, 1904, bought the lumber and some other material from the appellant; that Mrs. Condon did not know anything about Becker’s purchase of lumber until some time in October following, when her attention was called to it by appellant; that the lumber and material' were charged to Mr. Becker upon the books of appellant, but in October, when appellant ascertained the true condition of the ownership of
Mrs. Condon further testified on cross-examination, and, as appellant seems specially to rely upon this part of her testimony, we set it forth in full as the same appears in appellant’s abstract, as follows: “Q. You were perfectly willing to part with this lot for five years, and not get a cent for it? A. Yes, sir; he said he would put up a little shanty and live in it this winter, and he said: T am tired of paying rent, and most anything will do for us rather than pay rent ’ They were to pay interest. Q. In five years from now that lot may be worth considerable- more money. Didn’t you know that he intended to put a house on it ? A. He told me that he had made arrangements with Mr. Scowcroft for some lumber to put a little shanty on it this fall, and said: ‘Next summer I am going to- build a better place on it.’ Q. Is it not true that it was your idea that they would take that property and put a good house on it, and then you would make some money on it, even if they didn’t pay for it, and that was one of the considerations for your selling it on those terms — that he would put a house on it ? A. Why, certainly.
Counsel for appellant contends, as we understand him, that upon this evidence the court should have found that the lumber and material were purchased for the building, if not upon an express, then upon an implied, request of Mrs. Condon, and that therefore her property should he held, if she is not personally liable. In support of this contention counsel cites numerous cases wherein it has been held that where an owner enters into a contract, to sell real estate, wherein he requires the purchaser to make improvements upon the land sold, the land is subject to mechanics’ liens, including the interest of the vendor. It is further contended that such is the result, whether the contract expressly requires the improvements to be made, or whether this arises by implication merely. Counsel therefore insists that the court erred in its findings and conclusions in favor of respondent Condon, and that the findings, conclusions, and judgment should have been in favor of appellant, and against both respondents. This claim is based upon section 1312, Comp. Laws Utah, 1901, which, so far
This court has in effect passed upon the question involved 'in this ease. In the case of Morrow v. Merritt, 16 Utah 412, 52 Pac. 667, it was held that, under the section of the statute above referred to, material furnished at the request of a tenant of the owner does not bind the owner’s' interest in the land, although the tenant was by his contract of lease in writing obligated to make the improvements. Mr. Chief Justice Zane, at page 417 of 16 Utah, and page 669 of 52 Pac., speaking for the court, said:
“Doubtless statutes of other states may he found giving a lien upon the interest of the lessor of land without a contract with him or his agent, when material or labor is furnished to the tenant, and employed with his consent in erecting buildings or making improvements on the land. But, as we have seen, the Utah statute, upon which the plaintiff must rely, requires the materials to be furnished or the services to be rendered upon the request of the owner of the land, or his agent, before the lien can arise upon his interest.”
It is thus held iu that case that the landlord does not constitute the tenant his agent, so as to bind the landlord’s interest in the land by requiring the tenant to make permanent improvements upon the leased premises. There are many decisions wherein it is held that, where the owner of land as lessor or vendor requires his lessee or vendee to make improvements, permanent or otherwise, upon the premises
It is, however, contended by appellant that it appears from the testimony of Mrs. Condon that • she expected that the Beckers would build upon and improve the property, and that hence the authority from her to bind her interest in the property is implied. In this connection it is also insisted that the appellant is not limited by the terms of a written agreement which may bind the parties to it only, but that he may show any parol agreement between Mrs. Condon and Mr. Becker from which the authority from her to- him to purchase material to improve the property may directly appear or be inferred. This contention, in our judgment, is sound. The real question involved in such case is to establish the relation of principal and agent between the vendor and purchaser. If, therefore, the person furnishing material which is purchased for the improvement of certain property can show that the purchaser of the material was the
“When one sells land to another, and places that other in possession, in the absence of any restrictive covenants, there is always an implied license that the vendee may make improvements on the land. The expression of direct authority to do so, independent of other circumstances, would not charge the vendor’s estate.”
It requires no argument to establish the soundness of the principle enunciated in the foregoing statement. No doubt, when one purchases land of any kind, he has at least the implied power to improve it in his own way. If he does so upon his own responsibility, it is not easy to perceive how, in the absence of an express statute, he thereby binds the owner of the title for the value of the improvements. Nor do we think it changes the rule if the owner either expresses his assent to the making of the improvements or permits them to» be made without objection. In either case the necessary authority required by our statute in the vendee
Nor can the appellant recover upon the claim that Mrs. Condon ratified the acts of Mr. Becker in purchasing the materials. She denies that she made the statement attributed to her by appellant. The trial court found against appellant on this point, and it was for that court to say who told the truth in that respect. It is clear, however, that the lumber was sold upon the credit of Mr. Becker alone. He alone was charged with the account, and no change therein was made until appellant informed himself of the time state of the title. He could not at that time change the account, so as to include Mrs. Condon, without her consent. If he did not want’ to trust Becker, he should have looked into the matter sooner, and consulted Mrs. Condon before he furnished the lumber to Becker, and in failing to do so he cannot now complain. We need not pause to review the numerous cases cited by appellant’s counsel. It must suffice to say that the decisions in all of them are based upon written contracts between lessors and lessees, or vendors and vendees, wherein it was expressly provided that the lessees or vendees should make certain stipulated improvements upon the premises leased or sold. Many of the cases are also based upon statutes much broader than our own.
We are of the opinion that the court committed no error in rendering judgment in favor of respondent Lizzie Condon, and the judgment, therefore, should be, and accordingly is, affirmed, with costs to her.