Reno Electrical Works, Inc. v. Ward

274 P. 196 | Nev. | 1929

Plaintiff's whole case is based on its claim for furnishing and installing certain electrical fans. These fans were not furnished or installed specially for occupancy of premises as a restaurant. The building was an old one, occupied at different times for different purposes, and the fans were stock fans usable anywhere where fans were needed; they were not made specially for this building. Plaintiff's president admits that none of the fans were attached to the building. Restaurants are not the only line of business where cooling fans, etc., may be desirable or even useful, and the same is true of the suction fans to draw the impure air out of the room. Hence, no point can be made that these fans were furnished to fit a room for a special and particular purpose. Furthermore it is an admitted fact that the fans are of a standard pattern and are equally workable and useful in any other room or building occupied for purposes other than a restaurant. Some of the fans are not even screwed to the building or attached in any way except by a cord, which cord is carried along the wall of the building. They are identical in this respect with a telephone receiver. Counsel correctly contended in trial court that one of the controlling questions is: Were the fans furnished and received with the intention of same forming an integral part of the building? Because the Kyne Investment Company is not before the court, no finding, of course, can be made as to what its "intentions" were with reference to the installation of the fans. If, then, it is a question of "intention" between the parties actually before the court, i.e., plaintiff and the defendant Ward, then plaintiff's case on "intention" must fall, because the evidence is conclusive that the defendant Ward strenuously objected to plaintiff putting in the fans and notified plaintiff that neither he (Ward) or the property would be responsible therefor, and the evidence further shows that plaintiff went on during the absence of Ward from Reno and put in the fans. The mode of annexation is more or less immaterial, as it is the intent of the parties that controls. 23 C.J. 660, sec. 9 and n. 79. Neither is the consideration of extent of injury to freehold accepted as a reliable test. Such injury in any event must be of such character as would leave the premises in a maimed or unfinished condition. 23 C.J. 700, sec. 86 and n. 75; see, also, Id. 663, sec. 14.

We say that in cases of alleged annexations where the relation of landlord and tenant existed, the presumption is strongly against annexation, and in favor of the right of tenant to remove the articles as trade fixtures. Brown v. Reno Electric L. P. Co. (C.C. Nev.), 55 F. 229-233; 26 C.J. 695, sec. 81 and n. 81, and cases cited; Treadway v. Sharon, 7 Nev. 37-44; Spalding v. Columbia Theater Co. (Mo.), 175 S.W. 269; 11 R.C.L. 1069, sec. 13; Id. 1075, sec. 19; Id. 1077, sec. 20 and n. 10; Fratt v. Whittier, 58 Cal. 126-130; 12 Cal. Jur. 569, sec. 8 and n. 17.

Electric fixtures when installed by tenant are domestic fixtures and not a part of realty. 26 C.J. 725 and n. 76; Brown v. Reno Electric L. P. Co. (C.C. Nev.), 55 F. 229-234; Raymond v. Strickland (Ga.), 52 S.E. 619, 3 L.R.A. (N.S.) 69-71; General Electric Co. v. Transit Co. (N.J. Eq.), 42 A. 101; Excelsior Brewing Co. v. Smith, 110 N.Y.S. 8; In Re West (D.C. Pa.), 253 F. 963; Ballard v. Alaska Theatre Co. (Wash.), 161 P. 478-480; Leibe v. Nicoloi (Ore.), 48 P. 172-173; Lindsay Bros. v. Carter Rubber Co. (Pa.), 84 A. 783; 42 L.R.A. (N.S.) 546; Vaughen v. Holdeman, 33 Pa. St. 523; N.Y. Co. v. Allison (C.C.A., N.Y.), 107 F. 179; Lyons v. Jarnberg (Minn.),150 N.W. 1083; 39 A.L.R. 1044; Canning v. Owen (R.I.),48 A. 1033, 84 A.S.R. 858; 11 R.C.L. 1078 and n. 12, and cases cited. For the court to hold that the electrical wiring and fixtures in the Kyne Cafe are not such as to be lienable, would deprive all electricians and electrical contractors and works of the benefit of the Nevada lien law, and, further, for the court to so hold it would be necessary for the court to hold adversely to the great weight of the authorities on this subject. They were installed for the purpose of equipping that portion of the building for a certain purpose, to wit, a restaurant, or cafe. Such electrical fixtures are considered a necessity in almost all restaurants and cafes. The fixtures alone cannot be considered as a separate entity. They are a part of the whole system of wiring, installed for a particular purpose, in a building to be used for a particular purpose, to wit, a restaurant. "The object for which the fixtures are to be used is a controlling feature." Words Phrases, vol. 3, 2838; Buchanan v. Cole, 57 Mo. App. 11; Gass v. Rebling (Cal.), 19 P. 277; Donohue v. Cromartie, 21 Cal. 80; Mitchell v. Reeves (Colo.), 60 P. 577. Wires and insulators are considered lienable fixtures. 27 Cyc. 37, 38; 26 C.J. 668, sec. 23, p. 24. Electrical fixtures are a part of the realty, and lien may be had for the same. Riverside Fixture Co. v. Quigley,35 Nev. 18, 126 P. 543; Gaston v. Avansino, 39 Nev. 128; Canning v. Owin, 48 A. 1033; Fratt v. Whittier, 58 Cal. 126; Merritt v. Judy, 14 Cal. 59; Stone v. Suckle (Ark.), 224 S.W. 735. Machinery, easily removable, a fixture for lien purposes. McRea v. Central Nat'l. Bank, 66 N.Y. 489; Arnold v. Goldfield Chance Min. Co., 32 Nev. 447, 109 P. 718; Badger Lumber Co. v. Morion Water Supply Co. (Kan.), 29 P. 476; McGeary v. Osborne, 9 Cal. 119; Fehr Construction Co. v. Potts System Building (Ill.), 124 N.E. 315; Scanevin Potter v. Construction Mineral Water Co. (R.I.), 55 A. 754. In the foregoing cases, the machinery, electrical wiring and fixtures for which a lien was sought were all easily removable from the freehold, yet they were held to be material subject to the lien law. In the instant case the fans objected to are only a part of the entire design. Without the fans the special wires and sockets were useless for the purpose for which they were installed. Crane Co. v. Epworth Hotel Co. (Mo.), 98 S.W. 795.

In determining whether machinery placed in a plant by a lessee became a fixture, the question is whether the machinery was attached to the building with an intention that it should become a part of the plant as a whole, in which case it become a part of the leasehold interest, if essential to the successful operation of the plant. 17 Cal. Jur. 19, p. 35; Stevenson v. Woodward,3 Cal. App. 754, 86 P. 990; Schaper v. Bibb, 17 A. 935.

The fact that certain materials used in the construction of a building and within its architectural scheme were detachable and portable, such as an electric light sign, telephone equipment for communication within the building, gas furnaces and gas connections, and portions of mill work within the building would not impair the right to a lien. 17 Cal. Jur. 19, p. 36; Evans v. Judson (Cal.), 52 P. 585.

We do not have to consider the relation of landlord and tenant at all, and it is not involved in the instant case. Under the Nevada statute and Nevada decisions, Ward is held to be the purchaser of the fixtures and they are held to have been installed at his instance (Gould v. Wise, 18 Nev. 253, 3 P. 30; Rosina v. Trowbridge, 20 Nev. 105), as he did not post a notice of nonliability. Therefore we can consider only the question of vendor and vendee, or owner and materialman or lien claimant. Further, the rule as applied between landlord and tenant is much more liberal in its application in behalf of the tenant than in behalf of the owner when applied in cases between owner and lien claimant. Compare: 26 C.J. 688, sec. 58, and 26 C.J. 695, sec. 81.

OPINION This is an appeal from a judgment and also from an order denying and overruling a motion for new trial. The parties will herein be designated as in the trial court.

The facts, in brief, are these: Prior to the commencement of the action, the defendant T.O. Ward, as owner in fee, leased to the defendant Kyne Investment Company of Nevada, a corporation, that certain building erected many years ago on lots 4 and 5, in block Q of the city of Reno, situate on Center Street. The lease contract is not made a part of the record. On taking possession of the building in April, 1923, the lessee opened and conducted a restaurant therein, known as "Kyne's Cafe," until the latter part of August or the first of September of that year, when it failed, went out of business, and its property was taken over by its creditors and the lease abandoned and forfeited.

During the tenancy, and in the month of July, 1923, the plaintiff, Reno Electrical Works, Inc., a corporation, at the special instance and request of the lessee, furnished and installed in said restaurant fifteen electrical fans of different sizes, but nothing distinctive or peculiar about their construction. Two of the fans were placed in an inclosure above the ranges in the restaurant, one in the front, and the other in the rear of the building, which fans are designated as "exhaust fans," and used for the purpose of expelling smoke and odors arising from cooking. The other fans are designated "oscillating fans," set at different places in the restaurant, and used for purposes of ventilation. The insulating material for the exhaust fans was secured to the walls of the building by screws and nails and the oscillating fans by nails. The aggregate charge made for the fans, insulating material, and labor was $1,005.70, which the lessee agreed to pay, and did pay on said amount the sum of $357.50 which left a balance due for the fans, material, and labor so furnished the sum of $648.20. Having failed to receive payment of said sum, the plaintiff on September 13, 1923, filed its claim of lien against lots 4 and 5 and the building thereon owned by defendant lessor, T.O. Ward.

This action was commenced to recover judgment of $648.20 and for the foreclosure of the plaintiff's claim of lien. The case was tried to the court without the assistance of a jury, which resulted in a decision in favor of the plaintiff and against the defendant T.O. Ward. Upon the rendition of its decision, the court made and caused to be entered, over the objections of the defendant, its findings of fact and conclusions of law, and, upon its findings and conclusions, rendered the judgment from which the defendant appeals.

The defendant incorporated in its answer to the plaintiff's amended complaint several pleas in bar in the nature of pleas in abatement. In view of the conclusions we have reached, it is not deemed necessary to state and discuss the pleas.

The primary and basic question presented for decision is whether the plaintiff acquired a valid lien as against the lessor and owner of the lots and building thereon, for the whole or any part of its claim of $648.20.

Section 1 of an act approved March 2, 1875 (section 2213, Rev. Laws of Nevada), provides that "Every person performing labor upon, or furnishing material of the value of five ($5) dollars or more, to be used in the construction, alteration or repair of any building or other superstructure, railroad, tramway, toll road, canal, water ditch, flume, aqueduct or reservoir, building, bridge, fence, or any other structure, has a lien upon the same for the work or labor done or material furnished by each, respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent. * * *"

The plaintiff alleged in its complaint that the material and labor supplied was actually used in the alteration, repair, and construction of the defendant's building. The finding of fact made by the court does not support the allegation. The court's finding reads as follows: "That the electrical fixtures, wiring and fans installed in the said premises by the said plaintiff became fixtures to the building and realty and were subject to lien."

1, 2. It will be observed that the statute quoted does not specifically, or otherwise, mention fixtures, but it does use the expression "or other improvement." It is held, in many cases cited from other jurisdictions, that a mechanics' lien may be acquired for labor performed or material furnished in connection with the furnishing and installation of fixtures; that is, articles which were at one time personal property, but which are so attached to the realty as to become a part thereof. 40 C.J. 70. It is not now considered as absolutely necessary that an article be actually fastened to the freehold in order to make it a part thereof. The all-important questions are the intention of the person who brings it upon the land, the use to which it is to be applied, and its fitness for that purpose. Dawson v. Scruggs-Vandervoort-Barney Realty Co., 268 P. (Colo.) 584. The mere fact that the fans were a necessity for the tenant to carry on its business is not sufficient to subject the defendant lessor's property to the lien. The material and labor furnished related solely to the defendant's business. There is nothing in the evidence to show that it was the intention of the lessee or the lessor that the fans and insulating material were intended to be or become a part of the realty. It is true the insulating material was secured to the walls of the building by screws and nails, but not so secured as that the fans and materials could not be removed without injury to the insulation, and also the building. The proof shows that they were actually removed from the walls and the building subsequently rented to a Chinese physician.

3. The material furnished had no relation to the permanent improvement of the property of the lessor or the enhancement of its value. But if we assume that they were improvements, they were merely trade fixtures, which did not constitute an integral part of the realty. Consequently plaintiff's claim of lien was not established. Mechanic's lien statutes do not allow a lien for trade fixtures or chattels, fixtures, improvements, or additions which a tenant will be permitted to remove at the expiration of his term. 40 C.J. 71. Entertaining this view, we are of opinion that the trial court erred in finding and in concluding from its findings that as a matter of law the material and labor furnished by plaintiff constituted a part of the defendant realty and subject to lien.

The judgment is reversed.