49 Mo. App. 81 | Mo. Ct. App. | 1892
This action is to enforce a mechanics’ lien on account of a hot-air furnace, including pipes, registers, etc., furnished by plaintiff to defendant McNeil, for his residence in Kansas City. The furnace was placed in the cellar of the house and rested on a platform of brick, built for that purpose. It was not attached to this platform by fastening, nor in any other way than by its own weight. It was connected with the building by pipes leading to registers in the different rooms of the house. The contract provided that in case the furnace did not work and could not, on notice, be made to work satisfactorily, in accordance with the terms of the contract, it should be removed. It was further provided in the contract that the furnace and pipes should be so put in the building that it could be “removed without disturbing plastering or defacing ceiling.”
The jury found for plaintiff on the issue of the sufficiency of the furnace, for the amount of his claim, but found that he had no mechanics’ lien therefor. Plaintiff appealed in due course to this court. The appeal is well grounded. Erom what is clearly shown by the testimony, it is not easy to understand why plaintiffs should be denied their lien. The jury evidently found against the lien in response to the following instruction given in behalf of defendants, viz.: “If the jury believe from the evidence that the two furnaces mentioned in the contract read in the evidence were placed in the cellars of defendants’ houses, rested on the ground, or on a platform of brick or stone made for that purpose, were not permanently fastened down, the heating apparatus encased in galvanized iron covering, and that the pipes used to conduct hot air and attached thereto and all parts of said attachments to said furnace > were so constructed that they might be
But if we turn to the statute giving these liens it appears quite certain that plaintiff is entitled to his lien. It is provided in section 6705, Revised Statutes, 1889: “Every mechanic or other person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvement upon land,” etc., shall have a lien upon such building, erection or improvement. Under the lien statute of Pennsylvania similar in this respect to ours, a case arose over articles consisting of a “heating, laundry and cooking apparatus, including a large stock of soup kettles,” which were placed in a hotel. The court held that á lien- could be maintained against the(building for
It seems from defendants’ argument that he relies to a great extent (notwithstanding the instructions omit such consideration) upon the intention of the parties to remove the furnace as shown by the contract. The contract does not show this. It merely provides for removal in case the furnace does not fill the requirements. The sarnie provision might be made to any other part of a house. But that the furnace, if good, as found by the jury, was to be a permanent attachment and part of the freehold, can scarcely be questioned from defendants’ own testimony, and the fact it