Opinion
August 4, 1925.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Action to foreclose mechanic's lien. Judgment for defendant Hengy. Affirmed.
Tannahill Leeper, for Appellant.
The fee-simple interest of Hengy in the property described in the complaint is subject to this lien. (C. S., sec. 7339; 27 Cyc. 72; Hill v. Twin Falls Water Co., 22 Idaho 274, 279, 125 Pac. 204; McGill v. McAdoo, 35 Idaho 283, 206 P. 1057; Mine Smelter Supply Co. v. Idaho Mines Co., 20 Idaho 300, 118 Pac. 301; Van Stone v. Stillwell Bierce Mfg. Co., 142 U.S. 128, 12 Sup. Ct. 181, 35 L. ed. 961; Boyer v. Keller, 258 Ill. 106, Ann. Cas. 1916B, 628, 101 N.E. 237; Bartson v. Wiekert, 193 Ill. App. 467; Church E. Gates Co. v. National Fair Exp. Assn., 172 App. Div. 581, 158 N.Y. Supp. 1070; Friebele v. Swartz, 164 Ill. App. 504; Pierce v. Kinney, 152 App. Div. 638, 137 N.Y. Supp. 475; Wells v. Sherwin, 92 Ill. App. 282; Lingelsen v. McGregor, 162 Ind. 258, 67 N.E. 524, 70 N.E. 248; Cannon v. Helfrick, 99 Ind. 164; Willverding v. Offineer, 87 Iowa, 475, 54 N.W. 592; Phillips v. Clark, 4 Met. (Ky.) 348, 83 Am. Dec. 471; Shaw v. Young, 87 Me. 271, 32 Atl. 897.)
Leo McCarty, for Respondent Hengy.
The evidence was sufficient to support the findings of fact, and the judgment and decree based thereon. (C. S., sec. 7170; Independence Placer Min. Co. v. Knauss, 32 Idaho 269, 181 Pac. 701; Consol. Interstate-Callahan Min. Co. v. Morton, 32 Idaho 671, 187 P. 791; Holland v. Avondale Irr. Dist., 30 Idaho 479, 166 P. 259; McKeenan v. Vollmer-Clearwater Co., 30 Idaho 505, 166 P. 256; Jensen v. Bumgarner, 28 Idaho 706, 156 P. 114; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122; Hemphill v. Moy, 31 Idaho 66, 169 P. 288; Young v. Extension Ditch Co., 28 Idaho 775, 156 P. 917; Hayton v. Clemans, 30 Idaho 25, 165 Pac. 994.)
A contract made between appellants and defendant Heiter would not subject the property of respondent Hengy to a mechanic's lien. (27 Cyc. 50, 56; 2 Jones on Liens, 3d ed., pp. 485, 486; Wilson v. Gevurtz, 83 Or. 91, 163 P. 86, L.R.A. 1917D, 575; Nicholson v. Smith, 31 Idaho 544, 174 P. 1008; Little Valeria Gold Min. Mill. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. 970; Wilkins v. Abell, 26 Colo. 462, 58 P. 612; Moses v. Pacific Building Co., 58 Ca., App. 90, 207 P. 946; Prinz v. Second Street Theatre Co., 98 Wn. 149, 167 P. 39; Hudson-Houston Lbr. Co. v. Parks, 91 Okl. 46, 215 P. 1072; Francis v. Sayles, 101 Mass. 435; Boone v. Chatfield, 118 N.C. 916, 24 S.E. 745; Oregon Lbr. Co. v. Beckleen, 130 Iowa, 42, 106 N.W. 260, 6 L.R.A., N.S., 485; Hartley v. Murtha, 36 App. Div. 196, 56 N. Y. Supp. 686; Stetson-Post Mill Co. v. Brown, 21 Wn. 619, 75 Am. St. 862, 59 P. 507; Stenberg v. Linneman, 20 Mont. 457, 63 Am. St. 636, 52 P. 84; Gates v. Fredericks, 5 Ariz. 343, 52 P. 1118; Lynam v. King, 9 Ind. 3; Mosher v. Lesis, 10 Misc. 373, 31 N.Y. Supp. 433.)
This is an action for the foreclosure of a contractor's claim of mechanic's lien. The labor and material used were for the construction of a refrigerator or ice-box ordered by the tenant.
The assignments of error present two main questions: 1. Were the improvements of such a nature as to afford basis for a mechanic's lien against the fee owner of the premises? That is, was the labor and material expended for an improvement of the building in question, or for the construction of a mere trade fixture?
2. Were the labor and materials for which lien is claimed, furnished at the instance of the defendant Hengy so as to subject his interest as owner to the lien?
The second question was controlling in the trial court, therefore we will first examine it here.
In this case the ice-box or refrigerator was ordered by the defendant Heiter, who was a tenant in the building, but not a tenant of the owner Hengy. Hengy rented the storeroom in question to J.C. Cooley and he sublet part of the room to Heiter. Heiter was a stranger to the owner. There were no relations between them. The appellants are not seeking relief here against Heiter. The question is only as to the right of lien against the building.
Of course, ordinarily, where improvements are made at the instance of one not the owner of the fee, then only the interest of such person is subject to the lien. This court said in Nicholson v. Smith, 31 Idaho 544, 174 P. 1008, "Sec. 5113 specifies what property shall be subject to the lien if, at the commencement of the work, the land belonged to the person who caused it to be performed," and concludes as follows: "But if such person owns less than a fee-simple estate in such land, then only his interest therein is subject to such lien."
In this case the complaint charges that the work was done with the full knowledge and consent of the defendant Hengy and for his use and benefit, and appellant contends that the owner's sanction was a procuring cause for the outlay. On this issue the trial court found against appellant. While the testimony on this point is short, it is somewhat conflicting. The defendant Hengy testified as follows:
"Q. What was the whole conversation you had with him (Justice) that day?
"A. It was, the only conversation, the man, I didn't know him by name, or know him, he just stepped up and asked me if I had any objection to putting the ice-box in the store and I told him no, and off he went. That is all I had any conversation with him."
On the other hand, Mr. Justice testifies that he saw Mr. Hengy regarding the matter and that "I told him I was going to put up a refrigerator there in his place, and I think about the first thing he asked me was about what the cost would be, and I told him about two hundred dollars. So I told him: 'Of course,' I says, 'I don't know Mr. Heiter, and this is your building.' 'Well,' he said, 'that was all right. You go right ahead and put it in.'"
It appears that neither of the tenants, Cooley or Heiter, ever at all discussed the matter of the refrigerator with Hengy. The appellants base their right upon this single conversation between Justice and Hengy. From this testimony, in connection with the other evidence in the case, it appears the trial court concluded that the owner in no manner caused or encouraged the construction of the ice-box; that he had nothing whatever to do with its procurement. We think the record sustains the finding.
From the foregoing it becomes unnecessary to discuss the other question, for it is immaterial whether an improvement does or does not enhance the value of the property or inure to the benefit of the owner where it appears the owner in no way caused or encouraged its procurement.
We conclude that the judgment of the district court should be affirmed, and it is so ordered. Costs are awarded to respondent.
William A. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.
Wm. E. Lee, J., deeming himself disqualified, took no part.