Works v. Aetna Iron Works

143 Mo. App. 1 | Mo. Ct. App. | 1909

GOODE, J.

Plaintiff seeks to enforce a lien against a parcel of ground in the city of St. Louis and the six-story building on it, both belonging to the Christian Peper Tobacco Company, for material furnished to be used in the building. This material consisted of iron castings, denominated indifferently sill castings or channels and as long and short sills or channels. The long ones were twenty-three or twenty-fonr feet in length and the short ones ten feet or more. The amount of the bill for which a lien is asked is $190.66. The Christian Peper Tobacco Company owned several buildings in the city of St. Louis, and among others one-on the west side of .Main street between Morgan street and Lucas avenue. Said company manufactured tobacco in these buildings, and in carrying on that business used machines for pressing the tobacco. The pressing machines rested on a surface of copper which had been laid over wooden floors. In 1905 it- ordered of the Aetna Iron Works some cast iron sills or channels and the necessary bolts to be used for supports under the tobacco presses. The Aetna Iron Works arranged with plaintiff, the Banner Iron Works, to cast these channels, as they are more frequently styled, and send them to the factory of the Aetna Iron Works, where holes were drilled in them, and they were “trimmed up,” painted and otherwise adapted for use by the Peper Company. While the channels were in process of casting, the Banner Iron Works learned the Aetna Iron Works was “slow pay,” and before plaintiff would deliver them, it ascertained to what company the Aetna company had agreed to furnish the channels, though it does not appear the particular building in which they were to be used was ascertained. Some sixteen of the channels were used as supports under the presses, or tables connected with the presses, but four or five were used by the Peper Company for other purposes, such as skids, and “dunnage,” that is, were put under goods to raise them above the floor. Those placed under the presses and tables were not fastened to the floor and could readily be removed; in fact, the evidence shows such channels were taken from one building to another of the Peper Company’s factories, according to the convenience of the company. Neither were they put under all the presses, but only here and there under them. The Peper Company contended at the trial plaintiff was entitled to no lien for two reasons: Because it did not make or furnish the channels for use in the company’s building described in the lien statement, but for the Aetna Company • and because, further, the channels were not such machinery or material as is lienable under the statute. The court below gave copious declarations of law at the request of plaintiff’s counsel, stating, on the two controverted issues, that if the court found the channels were furnished by plaintiff to the Aetna Company for the building described in the lien paper, and said Aetna Company had a contract with the Peper Company to furnish the same, for said building, and the “said iron sill castings were placed in defendant Tobacco Company’s factory, and were especially fitted and adapted to defendant’s factory, and to the transaction of the business therein conducted by said defendant Tobacco Company” . . . and were “intended by said defendant Tobacco Company to be a permanent improvement therein,” plaintiff was entitled to have his lien enforced. Two declarations were given for defendant of which complaint is made, but it is not necessary to quote them or recite their substance, because. we are clear the judgment, which was in defendant’s favor, was for the right party.

Our statute gives a person who furnishes “material, fixtures, engine, boiler or machinery for any build: ing, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor,” a lien on the building, erection or improvement for the materials and machinery. [R. S. 1899, sec. 4203.] The description of the channels or sill castings demonstrates they were not material or machinery within the meaning of that section as construed by the courts. They were not attached to the building, or essential to its use as a tobacco factory, or used consistently for any one purpose, but for several different purposes, and could be and were moved from one building to another at the convenience of the company. No material or machinery furnished for use in a factory is lienable except such as becomes part of the realty. Whether in a particular instance the article became part of the realty, or, in other words, a fixture, is not determined altogether, or even principally, by the mode in which it is attached to the building or land, and whether the attachment is slight or strong, or whether the article can be removed readily without damage to the freehold. Those circumstances are to be considered in determining whether the material became a fixture, but they are not conclusive. The principal criterion is the intention with which the owner of the land or building put the material into the building or on the land — whether his purpose was to make it permanently a part of the land or tenement. If this was his purpose, then, though it is fastened to the freehold only slightly and may be .displaced without injury to the freehold, it usually will be treated as a fixture and lienable. In the case of machinery or other articles furnished to a factory or place of business, an important circumstance, in the attempt to ascertain the intention of the proprietor, is the adaptability of the article or machine to the work or business of the place. [Thomas v. Dabis, 76 Mo. 72.] If the thing furnished was necessary to that work or business, or necessary to the purpose for which the building was designed and used, or was a convenient accessory or commonly employed in connection with such business, the intention of the proprietor of the establishment to annex it permanently to the realty may be inferred. [Progress, etc., Co. v. Gratiot, etc., Co., 151 Mo. 501; Graves v. Pierce, 53 Mo. 423; Richardson v. Koch, 81 Mo. 264; Sosman v. Conlon, 57 Mo. App. 25; Roseville, etc., Co. v. Mining Co., 15 Colo. 29, 22 Am. St. Rep. 373; Morotoc Ins. Co. v. Rodefer, 92 Va. 747; see also 53 Am. St. Rep., note p. 571.] The most that can be said of those channels is that, like pieces of wood or stone, they were useful supports for the tobacco presses and were placed by the Peper Company under some of its presses. There was no proof they were customarily thus placed in tobacco factories, or were in any way necessary to carrying on the work of manufacturing tobacco, or that it could not be done as well without them.

The judgment is affirmed.

All concur.