99 F. 180 | U.S. Circuit Court for the District of Western Missouri | 1900
Both parties have treated this case as an action at law for the enforcement of a mechanic’s lien, which is permissible under the state statute. On its removal into this jurisdiction the action would nevertheless he treated according to the system of jurisprudence and rules of practice which obtain in the federal couris. In this court the action to enforce a mechanic’s lien is “essentially a suit in equity, requiring specific directions for the sale of property, such, as are usually given upon the foreclosure of mortgages and the sale of mortgaged premises.’’ Davis v. Alvord, 94 U. S. 546, 24 L. Ed. 288; Improvement Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. 177, 33 L. Ed. 433; Furnace Co. v. Witherow, 149 U. S. 578, 579, 13 Sup. Ct. 936, 37 L. Ed. 853; De La Vergue Kefrigerator Mach. Co. v. Montgomery Brewing Co. (C. C.) 46 Fed. 829. Yet, as the case was tried to the court, and the court has found the facts, neither party asking to have the pleadings reformed, and the conclusion of the court not being different, whether it be regarded as an action at law or a suit in equity, no error, perhaps, is predicable by either party of the course of procedure pursued.
"The first insistence of the defendant Jacob Dohl Packing Company is that the plaintiff waived its right to enforce a mechanic’s lien'herein by reason of (he following provision in its eoniract with John Featherstone’s Sons for furnishing the engine as subcontractor, to wit:
“It is agreed that the engine,” etc., “above specified, shall remain our properly, as security for the deferred payments, until fully paid for in cash. There are no understandings or agreements outside of this written contract.”
It is true, as said by Judge Scott in Gorman v. Sagner, 22 Mo. 139, that:
“Although there ma,y bo some distinction between an equitable lien and one expressly given by law, yet there is nothing in the cases hostile to the idea that (.he lien conferred by the statute may be extinguished by implication arising from the conduct of the parties.”
Without indulging in any discursive discussion as to what state of facts might amount to such waiver, as applied to a mechanic’s lien, the court is of opinion that such reservation of title in the manufacturer or vendor does not amount to a waiver of the right to file and enforce a mechanic’s lien for material thus furnished. Manufacturing Co. v. Smith (C. C.) 40 Fed. 339, 5 L. R. A. 231; Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 719, 3 Sup. Ct. 594, 27 L. Ed. 1081.
The second objection made to the lien is more serious. It is predicated of the insufficiency and uncertainty of the description of the property given in the lien, and its extension to other buildings and ground than that on which the improvement was made. The description of the property given in the lien is as follows:
“The four (4) story and basement brick, stone, and frame, packing-house building, with composition roof, and all other buildings and improvements connected (herewith, or adjacent or adjoining, and used, and operated by Jacob Bold Packing Company as a packing-house plant, and situated on the following • described premises, to wit: On blocks numbered eighteen (18) and twenty-three (23), West Kansas addition No. one (1) to the city of Kansas (now Kansas City), Jackson county, state of Missouri.”
“When the improvement consists of two or more buildings united together and situated on the same lot, or contiguous lots, or upon separate buildings upon contiguous lots and erected under one general contract, it shall not he necessary to Me a separate lien upon each building for work done or materials furnished in the erection of such improvements.”
It is well understood by well-advised lawyers, of this state that this addendum to the mechanic’s lien law, made in 1879, was enacted to avoid, under certain conditions, the rulings of the state supreme court in cases like that of Fitzgerald v. Thomas, 61 Mo. 499, and Fitzpatrick v. Same, Id. 512, and Lemley v. Steel Co., 65 Mo. 545, in which it was, in effect, held that where material was furnished for the erection or improvement of a number of buildings erected on separate lots, although the lots were contiguous, a separate lien must be filed on the buildings on each lot, for the reason that:
“The lien given by the statute against such building or improvement, and, the lot on which it is situated, is for the work and labor done on, and the materials furnished for, that particular building or improvement, and not for work done and materials furnished for the building- or improvement upon any other lot; and only that building and lot are to be charged for the lien for which such materials were furnished, and on which such labor has been performed.”
Hence section 6729 was enacted, by the very terms of which it is limited lo the improvement of two or more buildings united, standing upon the same lot or contiguous lots, and erected under one general con tract; that is to say, when the contractor, under a general contract with the owner of the properly, furnishes materials for the improvement and erection of a number of buildings, either united or disconnected, standing upon different lots, he may file one lien for the material upon such lots and buildings, without more. But in respect of materials furnished for, or machinery placed in, a particular building or buildings, the law stands just, as it did prior to the enactment of this statute, unless it is made to appear that such improvement or machinery enters into, and becomes a
“That the machinery for which a lien may he created must he furnished for a building or improvement made upon the land. That this clearly indicates-that the machinery must he such as is used in the erection of a building, which will, when placed in the building, erection, or improvement on the land, become a fixture, and become a part of the realty, or at least such as is necessary in-the erection of the improvement to be made,” etc.
Tkis later Progress Press-Brick & Machine Co. Case, supra, holds that the lien may extend to the building in which the machinery may subsequently be placed, although it was a completed structure before the machinery was erected, and although the building may not have been originally designed for the use to which the machinery is to be applied. But that case does not disturb the rule established in Fitzgerald v. Thomas, Fitzpatrick v. Same, and Lemley v. Steel Co., supra, except where the case is brought within th'e remedial provision of section 6729 of the Revised Statutes. The facts in the Progress Press-Brick & Machine Co. Case are wholly different from these at bar. The plant was for the manufacture of pressed brick,, and the buildings erected therefor were incomplete, and wholly unadapted to the purpose of their erection, without an engine and a kiln. In order to the completion of the structure, and its adaptation to the use of its construction, the contractor furnished 202,000 hard-pressed bricks for the kiln, and a pressed-brick machine, weighing over 52,000 pounds, permanently attached to the freehold. “The whole plant was used as one plant, and the several parts were necessary to make up the whole plant, which would not be a complete plant with any of the parts omitted.” The machinery for conveying the material to this kiln ran and operated throughout the whole structure. The harvested clay was brought from the clay sheds to the hopper, and carried into the machines by lifters; and all the parts “were connected so that the manufacture of the bricks could be carried on in one building, so as not to expose the clay to the elements while in course of manufacture.” The whole plant was inclosed on all sides, and throughout the opinion stress is laid upon the fact that the whole collection of buildings was covered by one roof. Without the bricks which went into the construction of the kiln, “the business of making dry pressed brick could not be carried on until the whole plant was completed.” As such, the machinery and the brickkiln became constituent parts of the united plant. And therefore the court held that the fact that the buildings extended over several lots did not disentitle the material man to file his lien on the whole plant and the lots on which it rested. In- the
The plaintiff has not asked to have its lien as to the building in which the machinery was located, or any particular buildings, or on any piece of ground, limited thereto. But at the hearing its counsel distinctly stated that he claims to have it enforced against all the buildings and all the grounds covering blocks 18 and 23. No officer, with an execution in his hands containing the description
And what is certainly fatal to this lien is the attempt to put in one lien items of account furnished under two separate contracts. The facts found in this case show two distinct contracts respecting the items of the account for which the lien was filed. After the plaintiff, in fulfillment of its contract, had furnished the machinery complete, and after it had been in use for a considerable time by the defendant, the rocker plates connected with the engine, for which an additional charge of $74.35 is made, of date July 13, 1898, in the account filed with the lien, broke in the use and operation of the machinéry by the defendant, for which the plaintiff was not responsible on the ground of having furnished an improper equipment. Thereupon the defendant applied to Featherstone’s Sons for new rocker plates,, whereat Featherstone’s Sons wired the plaintiff ho make and furnish the needed parts to the defendant, which was accordingly done; and the plaintiff charged the amount thereof as an additional charge to Featherstone’s Sons. This was clearly a separate and distinct contract. Central Trust Co. of New York v. Chicago, K. & T. Ry. Co. (C. C.) 54 Fed. 600. The lien by the plaintiff states specifically that all the materials mentioned in the account wei»e furnished “under one entire contract,” and the petition alleges that all the materials were furnished under “one entire, joint contract.” This, it seems to the court, is fatal to the lien. In O’Connor v. Railroad Co., 111 Mo. 194, 20 S. W. 18, the court said:
“That plaintiff has so joined in one account and one notice, and one count in his petition, the work done under both of its contracts, is' apparent upon the face of the petition. What is the effect of such a commingling? It destroys his lien, because he has mingled in one account the labor performed under two distinct contracts. The statute has been uniformly construed to discountenance such a practice.”
In view of the conclusion reached on the foregoing propositions of fact and law, it is not deemed essential to discuss other questions raised by the defendant. ,It results that the plaintiff cannot recover.