85 Wash. 604 | Wash. | 1915
On May 18, 1911, the respondent Montesano Lumber & Manufacturing Company, being then the owner of certain mill property, leased the same to J. W. Sumrall, A. B. Crosier, and A. K. Foss, for a term of three years, at a rental of $300 per month. The lease was in writing and contained, among others, the following conditions:
“It is agreed that whereas the said mill at this time needs new machinery and equipment, that second parties shall furnish as advance payment upon said rent, certain machinery and equipment, a list of which has this day been agreed upon, which machinery and equipment, with the cost of installation, shall not exceed ten thousand ($10,000) dollars, and up to that amount they shall be allowed a credit upon the rental to be paid by them, but for any machinery, or equipment, or cost of installation beyond that amount, then they shall
Subsequently, with the consent of the lessor, the lessees assigned their interests in the lease to the defendant Montesano Mill Company, who assumed the obligations due from the original lessees therein. Thereafter the Montesano Mill Company purchased of the Crane Company, and installed in the mill, certain machinery of the character of that described in the list mentioned in the lease, and of the value of $1,090.08. It subsequently failed to pay for the machinery according to the terms of the contract of purchase, and the vendor thereof filed a lien against the fee of the leased property for the amount of the claim, pursuant to the statutes relating to liens of mechanics and materialmen. After the filing of the lien, the Crane Company assigned the same to the appellant, who instituted the present action to foreclose the same. Foreclosure was denied her in the court below and, from the judgment entered, this appeal is prosecuted.
The trial judge denied the right of lien for the reason that the company furnishing the materials for which the lien is claimed did not deliver to the owner of the property the notice required by § 1133 of 3 Rem. & Bal. Code. This section reads as follows:
“Every person, firm or corporation furnishing materials or supplies to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, dike, flume, tunnel, well, fence, machinery, railroad, street railway, wagon road, aqueduct to create hydraulic power, or
It is the appellant’s contention that the statute is inapplicable to the conditions here existing. She contends that where a lessee agrees to make permanent improvements on the leased property in lieu of rent, the lessee is not a contractor in the sense in which that term is used in the lien statutes, but is the agent of the owner for the purpose of making the improvements, and as such agent may subject the fee to the claims of materialmen.
But since the statute requires the notice to be given the owner of the property sought to be charged with the lien when the materials are ordered by and delivered to “any contractor or agent,” the notice must be given to the owner in order to perfect the lien even when the materials are ordered by his agent, unless it is to be held that the “agent” referred to in the statute is the agent of the contractor, and not the agent of the owner of the property. This we cannot hold. Plainly the agent referred to is the agent of the owner of the property. There may be some inconsistency in providing that the owner shall receive notice of his agent’s acts in order to be bound by them, but it must be remembered that the right to a materialman’s lien is statutory. Without a statute granting it, no such right exists. When, therefore, the legislature grants the right, it may annex such conditions
The judgment is afiirmed.
Morris, C. J., Crow, Ellis, and Main, JJ., concur.