Patterson v. Gallagher

25 Or. 227 | Or. | 1894

Per Curiam.

Several objections are made to the validity of the lien, but as we are of the opinion that the labor performed and material furnished do not entitle the plaintiff to a lien on the building under the mechanic’s lien law, the other questions need not be considered. The statute confines the right to a lien to a person “ performing labor upon or furnishing material to be used in the construction, alteration, or repair, either in whole or in part, of any building,” etc.: Hill’s Code, § 3669. Labor upon or material used in the construction, alteration, or repair of a building is the test of the right to a lien under this statute. “In other words,” says Finch, J., “the work and material, both in fact and intention, must have become a part and parcel of the building itself”: Ward v. Kilpatrick, 85 N. Y. 413, 39 Am. Rep. 674. The right to a lien proceeds upon the theory that the work and material for which the lien is sought has increased the value of the building by becoming a part thereof; and where such labor is performed or material furnished at the request of a tenant, in order to charge the property of the landlord, it must appear, therefore, in addition to the other requisites of section 3672, that such labor and material entered into and became a part of the building, and not merely a fixture for the mere convenience of the tenant: McMahon v. Vickery, 4 Mo. App. 225. Now, in this case it is clear the labor performed and material used by the plaintiffs did not become a part or parcel of the building, but were solely for the use and convenience of the tenant in conducting his business and removable by him whenever he might cease to be such. They were fixtures like the bar to which they were attached, and were not more permanently connected with the building. It follows that the judgment of the court below must be reversed and the complaint dismissed. Reversed.