Summary
Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
(1) The court erred in giving the instructions and each of them in the nature of demurrers offered at the close of plaintiff’s case by respondents, Kellerman Contracting Company and Oliver P. Langan. Ward v. Nolde et al., 168 S. W. 596; Section 8212, R. S. 1909; Section 8216, R. S. 1909, as amended by laws of 1911, page 312; Section 8234, R. S. 1909; Joplin Supply Co. v. West, 149 Mo. App. 78; Sash & Door Wks. v. Shade, 137 Mo. App. 20; Seaman v. Paddock, 51 Mo. App. 465; Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236; Rogers v. Mining Co., 75 Mo. App. 114; Lumber Co. v. Greffett, 154 Mo. App. 33; DoughertyMoss. Lbr. Co. v. Churchill, 114 Mo. App. 578; CurtinClark Hdw. Co. v. Churchill, 126 Mo. App. 462; Lumber Company v. Nelson, 71 Mo. App. 110; O’Leary v. Roe, 45 Mo. App. 567; McGuinn v. Mines & Milling Co., 160 Mo. App. 28; Sawyer & Austin Lbr. Co. v. Clark et ah, 172 Mo. 588; Jodd v. Duncan, 9 Mo. App. 417. (2) The court erred in finding under the facts and circumstances in evidence that appellant could not recover against respondents Kellerman Contracting Co., and Oliver P. Langan or either of them or the leasehold interests of respondents, Langan and Badaracco. Ward v. Nolde et ah, 168 S. W. 596; and the other citations under point I supra; 27 Cyc. 58; Flournoy v. Brick Const. Co., 159 Mo. App. 376. (3) The court erred in holding under the facts and circumstances in evidence that appellant was not entitled to a mechanic’s lien against the fee of the Kellerman Contracting Co., or the leasehold interest of respondents, Oliver P. Langan and Badaracco. Ward v. Nolde, et ah, 168 S. W. 596; citations under point I supra; 27 Cyc. 65. (4) The court erred in admitting improper evidence on behalf of respondents over the objection and exception of appellant. (5) The court erred in excluding proper evidence offered by appellant over the objection and exception of appellant. ' (6) The trial court erred in overruling’ appellant’s motion for a new trial. In re McDonald & Son, 24 Am. B. R. 446, 178 Fed. 487; 25 Am. B. R. 948; Fischer & Co. v. Anslyn, 30 Mo. App. 317.
(1) In order to establish a mechanic’s lien, plaintiff must show a contract with the owner of the land, or one who has some interest in the land. 1 The lease from Langan to Badaracco devised only the roof of the building, and carried with it no interest in the'land itself, hence there was no contract with any one who held any interest in the land itself. Seidel v. Bloeser, 77 Mo. App. 172; Marble & Granite Co. v. Iiandlan, 85 Mo. App. 313; McMahon v. Vickery, 4 Mo. App. 225. (2) There was nothing’ in the lease from Langan to Badaracco which could, by any construction, be held to constitute Badaracco as Langan’s agent for the work done. Lumber Co. v. Morris, 170 Mo. App. 212; Ward v. Nolde et al., 168 S, W. 596; McGuinn v. Mine & Milling Co., 160 Mo. App. 28. (3) The mere consent of the landlord to his tenant making repairs or alterations will not constitute the latter his agent. Lumber Co. v. Morris, 170 Mo. App. 212; Winslow Bros. Co. v. Mccully Stone Mason Co., 169 Mo. 236; Dougherty-Moss Lumber Co. v. Churchill, 114 Mo. App. 578; CurtinClark Hardware Co. v. Churchill, 126 Mo. App-. 462; Ward v. Nolde et al., 168 S. W. 596. (4) In order to constitute a tenant the agent of the landlord for the making of repairs, the- landlord must have contracted with the agent for the making of the alterations or repairs, or obligated him to make such alterations or repairs to such an extent that the nonperformance of these obligations would work a forfeiture of the lease. See citations under points 2 and 3. (5) If Badaracco were Langan’s agent he could not delegate his authority for the making 'of contracts. Land & Lumber Co. v. Chrisman, 204 Mo. 371. (6) One may hold either the agent or his undisclosed, principal, but he cannot hold both, and by electing to hold one, he thereby discharges the liability of the other. Ames Packing & Provision Co. v. Tucker, 8 Mo; App. 95; Sessions v. Block et al., 40 Mo. App. 569; Provenchere v. Reifess, 62 Mo. App. 50; Lumber Co. v. Greffet, 154 Mo. App. 33.
(1) ’ There was no contractual relation between plaintiff and the owner of the fee, Kellerman Contracting- Company; hence, plaintiff is not entitled to a lien against the fee. Seidel v. Bloeser, 77 Mo. App. 172; Pickel Marble & Granite Co. v. Handlan, 85 Mo. App. 313; Dierks & Sons Lumber Co. v. Morris, 170 Mo. App. 212; Marty v. Amusement Co., 173 Mo. App. 709; Ward v. Nolde, 168 S. W. 601. (2) An agent cannot delegate his authority to a subagent. Chouteau L. & L. Co. v. Chrisman, 204 Mo. 378; Mechem on Agency, section 186. (3) Either the agent or his undisclosed principal may be held, but not both. Sessions v. Block, 40 Mo. App. 569; Provenchere v. Reifess, 62 Mo. App. 50; Lumber Co. v. Greffet, 154 Mo. App. 33; Mechem on Agency, section 696.
Statement. — The statement of counsel for one of the respondents is so full and fair that we follow, it with a few, mainly verbal, alterations, some omissions, and a few additions, letting this acknowledgment excuse the absence of quotation marks.
Bringing its action to obtain a personal judgment against certain of the defendants and to establish a mechanic’s lien against the interests of all the defendants in a certain piece of property in St. Louis, the plaintiff was defeated both before the justice of the peace and the circuit court, in which latter court the case was tried without a jury. From the judgment against him in the circuit court plaintiff has duly appealed to this court.
There was no evidence offered at the trial to establish any liability against any of the defendants, Mississippi Valley Trust Company, George D. Kingsland, Arthur J. Fitzsimmons or Christian Stocke. These defendants did not appear at the trial and appellant does not now ask any relief as against them, so they are out of the case.
The defendant Badaracco had been adjudged a bankrupt, so that the question of his personal liability is also removed, and he is not represented on this appeal. Not paying rental, he surrendered or was put out of possession.
The relief now claimed on this appeal is a lien against the leasehold interest of Badaracco and Langan and against the fee of Kellerman Contracting Company and a personal judgment against the last two.
The record discloses that the Kellerman Contracting Company bought the fee to a lot at the southwest corner of Delmar and Euclid avenues in April, 1909, and that in September, 1909, it entered into a building contract with the defendant Oliver P. Langan, providing for the construction by the Kellerman Contracting Company of a six-story office, storage and warehouse 'building on the property, to be leased, upon completion, to Langan. A method was provided for determining the total cost of the lot and improvements, and Langan was to pay six per cent net per annum on this cost as rental for a term of fifteen years. It was at that time estimated that the total cost would approxi-' mate $300,000. Langan was given an option for a certain length of time to purchase the building at that cost price, which' option could be renewed from time to time on terms stated.
Attached to this building contract was a form of lease in outline, to be executed upon the completion of the building. As this form was superseded by the lease actually executed by the parties, it needs no further attention.
This latter lease was executed in February, 1910, while the building was still in course of erection. It leases the entire property to Langan for a term of fifteen years from the date of the completion of the building “for store, office, storage and warehouse purposes.” As it was then estimated that the total cost of the property would amount to $315,000, it was agreed that the lessee should pay an annual rental of $18,900, being six per cent upon that cost price, but it was also provided that if, upon completion, it was found that the cost price was not $315,000, then the lessee should pay six per cent net upon whatever the cost price was. There was the further provision (and it is this provision upon which plaintiff relies) that if the lessee desired to have any changes made in the plans, or any additions or alterations made, for the purpose of procuring a valuable tenant for the building, the owner would pay the cost of the necessary labor and matelials, provided such additional cost did not exceed $10,000, and if such additional cost raised the total cost to more than $315,000, the lessee would pay additional rental based on six per cent of the increased cost.
The lessee was given the right to sublet any part of the premises without the consent of the lessor, but-could not sublet the whole of the premises without such consent. The lease also affirmed the option of the lessee to purchase the building upon the terms expressed in the original building contract. There is no evidence as to whether this option was exercised or renewed or is still existent.
The record further discloses that the building was actually completed and turned over to the lessee, Langan, in the following October. A settlement was then reached with Langan regarding the total cost price, which was found to be, not the estimated $315,000, but approximately $334,000; the rental was accordingly fixed at $20,000 per year and has been that ever since. No alterations were thereafter made by the 'owner and no others were requested by the lessee.
On April 14, 1911, the lessee, Langan, sublet the entire roof of the building to Badaracco, the roof then being an' ordinary gravel roof. This lease, after setting out that the roof leased was to be used as a roof garden and for no other purpose, for a term of four years, commencing on June 1, 1911, and to end May ■31, 1915, at the annual rental of $1500, payable quarterly in equal installments, sets out, among’ others, these conditions: Payment of the rental at the times ■specified; the surrender of the premises at the end of the term in as good condition as received, ordinary wear and tear excepted, and that “no alterations, additions or improvements shall be made in said premises without the written consent of the lessor, and any alterations, additions or improvements which may be made shall be and remain the property of the lessor, ■and be surrendered with the premises as a part thereof at the termination of the lease.” Then folows this, stated as part of the consideration between the parties : That “thelessor will do and perform at his own ■cost and expense, the following things, and in default •of them or any of them, will suffer the damages hereinafter stipulated; that is to say, the lessor will pay ■and agrees to permit the lessee to deduct from the rent due after the first installment of rent,' one-half of the' cost of flooring the roof of said building, in ■such flooring as said lessee may elect to put therein, including the flooring of the various buildings or compartments established upon said roof, the lessor’s ¡share to be paid shall not exceed $250.” Then follow an enumeration of various things which the. lessor agrees to do, such as putting in a flue, erecting a railing around the elevator shaft, erecting a corrugated iron room to be used as a service bar for the lessee, and it being covenanted that the lessor shall give the lessee the exclusive use of all buildings upon the top of the roof, except' the storage tank buildings, the' lessee having the right to use the roof thereof. It is further agreed that should the lessor “within a reasonable time after the execution of this lease, fail to carry out, furnish or supply, or do any of the things hereby agreed to be furnished, supplied or done by the lessor, the said lessee is hereby authorized to furnish, supply, install, erect and furnish any and all of said things required to be done by the said lessor, and to pay for the same, and to deduct the cost and expense thereof from the installments of rent due under this lease after the first installments; and it is further agreed that all the requirements of this agreement to be done and performed by the said lessor, whether performed and done hereunder by said lessor or said lessee, John D. Paulus, architect, shall superintend all the work done under this agreement, and shall let all contracts in such capacity, and his decision as to the manner and how such work shall be done, shall be final and binding upon both parties hereto; all contracts to be subject to approval of both parties hereto.” This covers the material portions of the lease between Langan and Badaracco necessary to be here considered.
On June 19, 1911, the plaintiff addressed its bid for furnishing such roofing to “John D. Paulus, Architect,” starting out thus:
“We propose to furnish and apply Carey’s roofing prepared for roof garden purposes on the Langan & Taylor Building for Jos. Badaracco for the sum of $4 per square.”
Then follow detailed specifications. At the foot of the page upon which this proposal was written Paulús wrote:
“Accepted,” and signed it, “Joseph Badaracco, Jr., per John D. Paulus, Arch’t.”
The plaintiff proceeded to furnish and apply the roofing, but neither Badaracco nor any one else made payment for it. Hence this action. Badaracco having been adjudged bankrupt, as stated, and failing to pay rental, Langan forfeited the lease to him.
Plaintiff in due time and form took the steps required by statute to fix a lien, the sufficiency of which steps are not challenged.
It does not appear that in the matter of subletting the roof to Badaracco, the negotiations for applying the new roofing thereon, the contract for it and the actual performance of the work, the fee owner, Kellerman Contracting Company, was consulted or advised. The plaintiff did not know or deal with the Kellerman Company in the matter; neither did Badaracco nor Paulus.- Langan, of course, knew of the relation of Kellerman Contracting Company to the premises, but it does not appear that he either dealt with plaintiff or with Badaracco or Paulus in this matter.
The original roof was an ordinary pitch and gravel roof, rough, as such roofs usually are. The purpose of putting flooring over it was to afford a smooth surface. The new material of which this flooring was composed was a paper preparation, attached to the roof by pitch, with seams cemented, and white sand rolled on top with a heavy roller.
Mr. Kellerman, president of the Kellerman Contracting Company, and a practical builder of thirty-five years’ experience, testified that this, covering did not improve or strengthen the roof, but, on the contrary, damaged it, as it would permit water to get underneath, between it and the original roof, and rot it; that at the end of fifteen years the new covering would not be of any. substantial betterment to the property, but the contrary. This was objected to by plaintiff, it claiming that the roof was only guaranteed for five years and that plaintiff was not responsible for its durability; that all.it sought was pay for the work ' done and material furnished.
The lien statement filed December 6, 1911, shows ■that plaintiff claims to have been an original contractor with the Kellerman Contracting Company for the doing of this work; it is therein stated the work was done under contract with the Kellerman Contracting Company and others, “by and through its and their agents, Joseph Badaracco, Jr., and John D. Paulus.” The same allegation is made' in the petition; also the further allegation that Paulus was to let contracts for improvements “subject to the approval of said Kellerman Contracting Company;” that “it was understood by and between defendant Kellerman Contracting Company and Langan et al., that the building-should be altered and improved, as provided in said lease of defendant Langan to defendant Badaracco;” that “said defendants (including Kellerman Contracting Company) agreed to pay plaintiff therefor,” etc.
After hearing all the plaintiff’s evidence, the court sustained a demurrer to it offered by defendants Langan and Kellerman Contracting Company, and gave a declaration of law to the effect that plaintiff could not recover. Then followed this appeal.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
