Carroll v. Shooting the Chutes Co.

85 Mo. App. 563 | Mo. Ct. App. | 1900

BIGGS, J.

— In this case no instructions were asked and none were given, and no objection was made to the admission or rejection of evidence. The only exception found in the record is that under the law and evidence the plaintiff was entitled to a mechanic’s Hen for work done on the improvements mentioned in the petition, and that therefore the circuit court committed error in refusing to enforce it. Briefly stated the facts are these: The Shooting of the Chutes Company, a corporation, is the lessee of certain ground in the city of St. Louis. It erected on the land a structure known as “shooting the chutes,” which is described in the petition and evidence as a wobden and iron transit way which 'extends to a lake. It is built upon an inclined plane and is used for “tobogganing” boats from the landing or chute to the lake. In connection with this trainway is an engine house, office building, dancing pavalion, etc. In making the improvements the company contracted with plaintiff to do the necessary earth work, that is, the removal of the soil necessary to fit the ground for the improvement and the excavations for the foundations of the various structures, which work the plaintiff performed. On account of the work the company owed the plaintiff a balance, to secure which the latter filed a mechanic’s lien. The present action is to recover a judgment for the amount due and to enforce the lien. The circuit court rendered a judgment for the amount claimed, hut declined to enforce the alleged lien. Erom the judgment as to the lien the plaintiff has appealed.

The defendant company occupied the premises under a •lease for the term of ten years. The lease was not read in evidence, and there is no testimony in the record as to its terms. The averments in the petition and the evidence as to the improvements are not explicit, which prevents us from determining the precise character of the several structures, or what the agreement of the lessor and lesee was as to them. There is, however, sufficient evidence in the record to warrant the conclusion that the structure is a trade fixture, and if so it was not subject to a mechanic’s lien, for the reason that trade fixtures never become a part of the realty. They remain personalty and the security of the mechanic who constructs them is in the enforcement of his artificer’s lien. Boiler Works v. Haydock, 59 Mo. App. 653. As this review is warranted under the record we must affirm the judgment. The rule of appellate practice is, that if the trial of a cause is without error, the judgment must be affirmed, if it is possible to do so on any possible theory of law applicable to the facts. Jungeman v. Brewing Company, 38 Mo. App. 458; Gentry v. Templeton, 47 Mo. App. 55.

The judgment will be affirmed.

All concur.