121 Mo. App. 209 | Mo. Ct. App. | 1906
The Epworth Hotel was erected on a parcel of ground three hundred by two hundred feet, in the county of St. Louis, near the western boundary line of the city of St. Louis. Standpipes to contain wa
“'The court declares the law to be that the plaintiff is not entitled to a mechanics’ lien, unless the fire apparatus described in the bill of account attached to plaintiff’s petition, or some certain and definite part thereof, was attached to the said Epworth. Hotel and became a fixture and a part of the realty for which a mechanics’ lien is allowed by law. And the question whether or not said fire apparatus did become a fixture as aforesaid, is a question both of fact and of intention.
“And in case the court finds from the evidence that the said fire apparatus was furnished by plaintiff for the purpose of being attached, and the whole or any definite part thereof was afterwards actually attached to and became a. part of the. Epworth Hotel, with the intention on the part of the defendant, Epworth Hotel Construction & Real Estate Company, that such fire apparatus should be and become a permanent attachment and fixture to the said Epworth Hotel, and a permanent appurtenance thereto and part thereof, then the court should find a judgment sustaining a lien in favor of plaintiff
The court made .the following finding of facts:
“The court, sitting as a jury, finds the facts to be that the plaintiff, Crane Company, sold to defendant, Epworth Hotel Construction & Real Estate Company, thirty-three outfits of fire apparatus at $19.25 per outfit, each, outfit consisting of one section of 1^ inch cotton-lined hose 75 feet in length, one 1J inch special brass hose nozzle and one No. 15 Dewey hose rack, and also three outfits at $46.50 per outfit, each consisting of one section 2-|- inch special nozzle and one No. 6 swing hose rack or reel and also twenty (for 35 cents) 1| inch rubber hose washer, and that the prices SO' charged were agreed upon by and between said Crane Company and the Epworth Hotel Construction & Real Estate Company and were the reasonable value of such materials and amounted in gross to the sum of $775. 85, and the court finds that said materials were furnished by plaintiff for the original construction of and for the purpose of being attached to the Epworth Hotel and that the last delivery under said contract was made by the plaintiff on the 17th day of June, 1904. i
“That of the goods so furnished thirty-two' of the thirty-three outfits, consisting of Dewey hose racks equipped with T| inch hose and nozzles, together with twenty washers, were shortly, after delivery attached to the Epworth Hotel with the intention on the part of the Epworth Hotel Construction & Real Estate Company, that they should become a part of and a permanent ap-' purtenance and fixture to the said Epworth Hotel.
“And the court finds that the three outfits consist
“And the court finds that, as a matter of fact, under and according to the foregoing declarations of law that thirty-two outfits, consisting of Dewey hose racks and 1-i inch hose nozzles, became and are fixtures to the Epworth Hotel, and that one outfit, consisting of one Dewey hose rack and one section 1-J inch hose and one 11 inch nozzle, and also three outfits, consisting of swing hose racks or reels equipped with 2-J inch hose and nozzles, did not become and are not fixtures to the said Epworth Hotel.
“And the court finds that since the thirty-two outfits aforesaid were delivered by the Crane Company and attached to the said Epworth Hotel with the purpose and intention aforesaid, said outfits have remained permanent attachments and appurtenances to the said Epworth Hotel and have never since been detached or removed.
“And' the court further - finds that the reasonable, value of the materials which were attached and became fixture's to the said Epworth Hotel namely, of the thirty-two’outfits aforesaid, is the sum of $616.35, and that the reasonable value of the materials which did not become fixtures and were hot attached to the Epworth Hotel is the sum of $159.50 and that defendant has paid to plaintiff the sum of $300 on account' of said materials, after the sale and delivery of all of the sainé.
“And the court finds that the plaintiff served' a notice upon defendant, EpAVorth Hotel Construction & Real Estate Company, on the tAventy-first day of September, 1904,' of its intention to .file a lien upon the property of defendant, and'that ten days thereafter, and within four months from the date when the last items
“And the court, applying the payments made by defendant according to the declarations of law, finds that the plaintiff is entitled to a lien upon the Epworth Hotel building described in the petition for the sum of $475.85, with interest amounting to $18.95, or a total of $494.80, and to a general judgment against the defendant Epworth Hotel Construction & Real Estate Company, for the same sum, with costs.”
Defendants Trust Company of St. Louis county and Edward J. Wilke appealed from the judgment.
The evidence shows the items the court found to be lienable, namely, thirty-two outfits of fire apparatus, each apparatus consisting of seventy-five feet of cotton lined fire hose, one and one-half inches in diameter, hose nozzles one and one-half inches in diameter, and fifteen No. 1 Dewey hose racks, were attached to the standpipes. The manner of attaching the apparatus to the standpipes is correctly described in appellants’ statement and is as follows:
“About three feet above the floor in each story of the building in every standpipe there Avas an aperture over Avhich was permanently fastened a valve through which Avater might floAV. A projection over each of these valves Avas provided on the outside with a thread. The hose were attached to these projections by the use of these threads. The attachment was made by screwing the hose on to the projecting part of the valve. This could usually be done by a man with his naked hand. The hose could likeAvise be detached with the naked hand, though a wrench Avas provided to be used for tightening and loosening the attachment. The hose .could be attached to or detached from the standpipe without marring the pipe in the least. The racks described as baskets were attached to the standpipes just
The affidavit to the lien sets forth that the account is a just and true account; that the materials were furnished at the request of the Hotel Company, describes the land, etc., on which the building is situated, and concludes as follows: “That at and during the accruing of said indebtedness said Epworth Hotel Construction & Real Estate Company, as affiant is informed and believes, was and now is the owner of the above described lands, buildings, improvements and appurtenances, and which said lands, buildings and improvements and appurtenances are intended to be charged with this lien.”
1. Appellants offered an instruction in the nature of a demurrer to respondent’s evidence. The refusal of the court to grant this instruction is assigned as error. The contention is, first, that the evidence shows the fire apparatus was not a fixture; second, the affidavit to the lien account is insufficient to support the lien. The standpipes, though forming no part of the building were built up through it with the intention that they should be permanent, and for this reason were appurtenant to the realty. The hose and Dewey baskets were attached to the standpipes in such a manner that they could be easily detached without damage to the pipes or the building, but the pipes were absolutely useless without the hose attachment, and the trial judge found the owner intended the attachments should be perma
“Mr. Dane, in his Abridgment of American Law, remarks, fit is "very difficult to extract from all the cases as to fixtures, in the books, any one principle upon •which they have been decided; though being fixed and fastened to the soil, house, or freehold, seems to have been the leading one in some cases, though not the only one.’ And he further remarks, ‘not the mere fixing or fastening is alone to be regarded, but'the use, nature and intention’ — 3 Dane’s Abr. 156.
“In Teaf v. Hewitt et al., 1 Ohio S. T. 511, Ch. J. Bartley, after a very able review of the authorities, reached the conclusion, that the united application of the following requisites might be considered the safest criterion of a fixture: — ‘1. Actual annexation to the realty or something appurtenant thereto. 2. Application to the use and purpose of that part of the' realty with which it is connected.' 3. The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being
In St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo. App. l. c. 319, this court, through Bond, J., said:
“Fixtures are chattels personal which may become a part of the freehold by the manner, purpose and intention with which they are affixed to the realty or something appertaining thereto. There is an essential distinction between such things as are deemed fixtures between heir and personal representative, vendor and vendee, mortgagor and mortgagee, and those things which a tenant may remove at the end of his term. The statutes relating to mechanics’ lien clearly intend that it shall extend to whatever is a fixture under the broader rule applicable to the former class. While the decisions on this subject depend much on the facts of the particular case, the principle' to be extracted from them is that a fixture of the class under discussion is made up of three elements, annexation, adaptation and intent. Of these in modern times the latter two are more important than the one relating to the method by which the chattel is attached to the freehold. Such annexation, though slight and easily displaced, will not prevent an article becoming a fixture which is adapted to the proper use of a building, and which was placed therein by the owner with the intent of forming a part of the special object and design for which the building was constructed. [Thomas v. Davis, 76 Mo. 72; Thomas v. Rogers, 40 Mo. 91; Sosmon v. Conlon, 57 Mo. App. l. c. 30; Davis v. Mugan, 56 Mo. App. 371; Cooke v. McNeil, 49 Mo. App. l. c. 81; Dimmick v. Cook, 115 Pa. St. 573; Capehart v. Foster, 63 N. Y. (Supp.) 257.]” And held that
In Supply Co. v. Light & Power Co., 75 Mo. App. 622, plaintiff sold defendant wire which defendant used by stringing wires upon poles erected along the public streets of the city of Rolla, extending them into defendant’s electric power house and connecting them there with its electric power plant. The suit was to enforce a mechanic’s lien on the plant for the value of the wire. This court held that inasmuch as the ware was attached to the building it formed an integral part of the improvements and was absolutely necessary to the operation of the plant and ought to be regarded as a part of the machinery of the plant and as an appurtenance of the lot upon which the plant was situated. In Hughes v. Lambertville Electric Light Co., 53 N. J. Eq. 435, the same ruling was made on a like state of facts.
In Heidegger v. Atlantic Milling Co., 16 Mo. App. 327, a lien was sustained for bolting cloth which had been made to form a part of the essential machinery of the mill.
In Strickland v. Parker, 54 Me. 263, it is said, in substance, it is regarded as one of the indications that the thing in question is a fixture, that it appears, from the whole case that such was the intention of the owners of the soil who erected it.
In McLean v. Palmer, 2 Kulp (Pa.) 349, it is said: “The clear tendency of modern authority seems to be, to give pre-eminence to the question of intention to make the article a permanent accession to the freehold, and the other tests seem to derive their chief value as evidence of such intention.”
“The Missouri mechanic’s lien law gives a lien where the machinery or material furnished is intended by the owner of the property to become a part of the building, manufactory or plant, and it is immaterial whether they are used in constructing a new building to be used for that purpose or are used by the owner in converting an existing building into a manufacturing plant.
“The intention of the owner of the property, in attaching machinery to a house, is the best criterion in determining whether or not it became a part of the realty, and the adaptability of the machinery to the uses and purpose to be subserved is the next best test.”
Tyler v. White, 68 Mo. App. 607, lays stress on the intention of the owner to make a heating plant installed in a residence permanent, in holding that the plant was a fixture.
In Hill v. National Bank, 97 U. S. 450, it is held: “The question of whether an article is a fixture or not is governed very much by the intention of the owner and the purpose for which the erection Avas applied.” This case was followed in William Firth Co. v. South Carolina Loan & Trust Co., 122 Fed. 509. Numerous cases from this and other States holding che same doctrine might be cited for they are legion.
In Goodin v. Elleardsville Hall Assn., 5 Mo. App. l. c. 294, it is said: “For the purpose of the mechanic’s lien law, we take it that the rules applicable between heir and executor shall be applied.”
We are not therefore concerned with those cases where the rule in regard to fixtures is modified to. suit the relations between landlord and tenant, or where the premises in question are fitted up and used for manufacturing or trade purposes. The purpose for erecting the standpipes in the hotel was to afford protection
2. Section 4207, R. S. 1899, provides: “It shall be the duty of every original contractor . . .to file with the clerk . . .a just and true account of the demand . . . with the name of the owner or contractor, or both, if known to the person filing the
In Dorman v. Crozier, 14 Kan. 224, it was held: “An affidavit made by an agent of another, certifying a statement of a claim filed with the clerk of the district court under section 3, of the Mechanic’s Lien Law of 1871 (of Kansas), for the purpose of procuring a mechanic’s lien on certain real estate, should be sworn to positively;” and that an affidavit on information and belief was insufficient. The section of the Kansas law referred to is similar to section 4207, supra.
In Forbes v. Hyde, 31 Cal. 342, it was held: “An affidavit to obtain an order for publication of summons, which states that the deponent ‘has a good cause of action in this suit against the said defendant, and that he is a proper party defendant thereto, as he verily believes,’ does not state any fact tending to show a cause of action, and an order and publication based on it are void.” The same ruling on a like statute was made by the Supreme Court of Alabama in Globe Iron Roofing and Corrugating Co. v. Thacher, 87 Ala. 458.
To obtain an attachment writ in the State of Rhode Island, the statute requires a positive affidavit as to certain facts. In Greene v. Tripp, 11 R. I. 424, the affidavit for the attachment used the words, “I verily believe.” It was held these words did not import the certainty required by the statute and the attachment issued thereon
In the case of Leisse v. Schwartz, 6 Mo. App. 413, cited by respondent, the affidavit is not set out in the opinion and all that the court said of it is, “The affidavit filed with the lien was in substantial compliance with section 5, page 909, of Wagner’s Statutes. The account sworn to contained the names of the owner and the contractor. It was unnecessary to repeat them in the affidavit.” From the language used, we infer the objection was to the contents of the affidavit, not to the manner of its verification.
In Finley v. West, 51 Mo. App. 569, the affidavit was as follows:
“State of Missouri, County of Clay, ss.
“J. E. Lincoln, ag’ent and attorney for B. P. Finley, being duly sworn, on his oath says that he believes the foregoing is a just and true account, etc.
(Signed.) James E. Lincodn.
“Subscribed and sworn to before me this sixth day of October, 1890. ---.”
The Kansas City Court of Appeals said: “We are of tbe opinion that an oath on the belief of the affiant is a substantial compliance with the lien law.
In Dorman v. Crozier, supra, the affidavit was on information and belief, in respect to the entire contents of the lien statement. In the case at bar the affidavit is positive in regard to every statement required by the statute to be made to entitle respondent to the lien, except as to the name of the OAvner of the property sought to be charged with the lien. This only is stated on information and belief. It would be an extremely harsh rule to require the lienor to SAvear positively in evury instance to the name of the true owner of the freehold and improvements sought to be charged, a fact that is often difficult to ascertain, especially when there are rival claimants. All the essential facts to entitle respondent to a lien and all the facts of which the affiant could have positive knoAvledge were sAvorn to positively, and for this reason we think the affidavit substantially complies Avith the requirements of the statute.
Attachment is an extraordinary remedy. The writ commands the officer to whom it is directed to seize and levy upon the goods, chattels and real estate of the defendant, in advance of any hearing or trial of the merits; for these reasons the courts have uniformly held every requirement of the law leading up to the issuance of the Avrit should be strictly complied with. The mechanic’s lien law is not a drastic remedy. The filing of the lien statement has no other effect than to impress the property described with a lien to pay a definite sum; to be