Opinion
No. 8102.
January 31, 1955.
APPEAL FROM DISTRICT COURT, CANYON COUNTY, DONALD ANDERSON, J.
Dunlap Dunlap, Caldwell, for appellants.
Caldwell, Alexanderson Davis, Caldwell, for respondents Frank W. Roberts, Frances Virginia Roberts Nelson, and Ada Maxine Roberts Briggs.
Harold L. Yeamans, Caldwell, for respondent Herbert J. Alexander.
By granting the motion for a non-suit, the Court divested itself of the power to do more than enter judgment of dismissal and, therefore, had no authority to make and enter its Findings of Fact and Conclusions of Law awarding the defendants, Roberts, Nelson and Briggs, the affirmative relief of cancelling the liens of record. 64 Corpus Juris, paragraph 412, page 418; Tintic Standard Mining Co. v. Utah County, 80 Utah 491, 15 P.2d 633; Cloukie v. Semple, 88 Wn. 534, 153 P. 319.
Where by the terms of the lease the lessee is required to make improvements or repairs, the lessee is thereby made the agent of the lessors within the purview of our mechanics' and materialmen's lien statute. Idaho Code § 45-501; Gem State Lumber Co. v. Union Grain Elevator Co., 47 Idaho 747, 278 P. 775; 57 C.J.S., Mechanics' Liens, § 65(4) (a), p. 562; See Annotations in 79 A.L.R. 964, and 163 A.L.R. 994.
A Lessee is not per se a "contractor, subcontractor, architect or builder" within the statute set forth above for the purpose of creating a mechanic's lien for work or labor furnished on the landlord's property. Rio Grande Lumber Fuel Co. v. Buergo, 41 N.M. 624, 73 P.2d 312, 315, 123 A.L.R. 1; Gates v. Fredericks, 5 Ariz. 343, 52 P. 1118, 1119.
There appears to be no doubt but that a Lessee may be constituted the conventional agent of the Lessor just as may any other person of sufficient capacity, but it is generally held that a Lessee is not the agent of the Lessor within the contemplation of mechanics's lien statutes merely by virtue of the relation of landlord and tenant. Gem State Lumber Co. v. Union Grain Elevator Co., 47 Idaho 747, 278 P. 775, 776; Barr Lumber Co. v. Perkins, 214 Cal. 531, 6 P.2d 948, 949; Annotation, 79 A.L.R. page 962, citing Boise-Payette Lumber Co. v. McCormick, 36 Idaho 788, 213 P. 1119, memorandum decision.
Where a Judgment of Non-Suit is entered in favor of Defendant, findings are unnecessary, but the fact that the Court made findings is not reversible error. Mosk v. Scheinberg, 52 Cal.App.2d 154, 125 P.2d 872, 873; Finch v. Ekstrom, 115 Cal.App. 381, 1 P.2d 516, 517.
Appellants and others sought in this action to foreclose claimed mechanics' and materialmen's liens on real property owned by Frank W. Roberts, Frances Virginia Roberts Nelson and Ada Maxine Roberts Briggs, hereinafter referred to as respondents. Herbert J. Alexander was made a party defendant as an alleged lessee of the landowners. The complaint alleged that the labor and material for which the liens are claimed were furnished at the request of respondents; and further alleged the recording of the liens pursuant to the provisions of Section 45-507, I.C.
The pertinent facts are: Respondents, Roberts, Nelson and Briggs, leased to Alexander a part of the real property on which the liens are claimed. This lease was for a period of three years and by its terms expired on December 31, 1951. For sometime thereafter Alexander was a hold-over tenant. There was some correspondence between respondents and Alexander relative to a new lease. None was made. In January, 1952, Alexander contracted with respondents and others, not parties here, to make alterations and repairs on a restaurant building located on the premises, also contracted for some capital improvements in the nature of living quarters at the rear of the building. Thereafter, on and between February 2, 1952, and May 3, 1952, appellants performed labor and furnished materials for which the liens are claimed. Respondents denied that they ever authorized the furnishing of labor or material for improvements; alleged that Alexander was not their agent; that they had no knowledge of the work being done.
On issues joined the case was tried. The lower court entered a personal judgment against Alexander, who has not appealed, sustained a motion for a nonsuit as to all other defendants, found that appellants had no lien on the real estate in question and released and discharged the alleged liens of record. From this judgment James H. Bunt, William A. Bunt, Ivan E. McMillin and Hoff Building Supply, Inc., a corporation, appealed.
In assignments of error appellants contend that the findings of fact are not supported by the evidence, and specifically challenge the finding that Alexander was not the agent of respondents; that the court erred in releasing the liens of record; that on sustaining the motion for a nonsuit, it was error to thereafter make findings of fact and conclusions of law and enter judgment.
The mechanics' lien law, Section 45-501, I.C., authorizes a lien in favor of "Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any * * * building * * * for the work or labor done or materials furnished, whether done or furnished at the instance of the owner of the building * * * or his agent; * * *."
A tenant or lessee is not generally considered the agent of the lessor within the interpretation of the mechanics' lien law merely by virtue of the relationship of landlord and tenant, and a tenant or lessee cannot subject the interest of his landlord to a mechanic's lien by reason of the tenant's contract with a materialman or laborer, unless the owner does some act in ratification of, or consent to the work done and the furnishing of the material or labor. 36 Am.Jur. 73, Secs. 93 to 95; Rio Grande Lumber Fuel Co. v. Buergo, 41 N.M. 624, 73 P.2d 312, 123 A.L.R. 1; Boise-Payette Lumber Co. v. McCornick, 36 Idaho 788, 213 P. 1119.
The estate or property of a lessor is not subject to a mechanic's lien for improvements contracted for by his lessee unless the lessor has made him his agent or otherwise conferred the requisite authority on him, or ratified his acts, or is estopped to deny the validity of the lien. 57 C.J.S., Mechanics' Liens, § 65, p. 559; Mundet Cork Corp. v. Three Flowers Ice Cream Co., Mo.App., 146 S.W.2d 678; Masterson v. Roberts, 336 Mo. 158, 78 S.W.2d 856, 97 A.L.R. 862.
A study of the evidence fails to disclose that the work performed or the materials furnished in making repairs and improvements were authorized by the landowners or anyone acting in their behalf.
The evidence affirmatively shows that each appellant performed work and labor, or furnished material at the request of Alexander. It was he who was making the repairs and improvements, and appellants were relying on and looking to him for their pay. There being an entire failure of proof, the liens cannot be sustained and the trial court was correct in granting the motion of nonsuit.
Appellants contend it was error to enter findings of fact and conclusions of law, and to release the liens of record. On the findings of fact and conclusions of law made, personal judgment was entered against Alexander. No appeal was taken from this judgment. The fact that the court made findings as to the appellants against whom he had entered a nonsuit is not reversible error. Mosk v. Scheinberg, 52 Cal.App.2d 154, 125 P.2d 872; Finch v. Ekstrom, 115 Cal.App. 381, 1 P.2d 516; Connor v. Raddon, 16 Utah 418, 52 P. 764, Syl. 4.
There is no merit to the contention the court erred in ordering the liens released of record. The appellants having failed to prove the validity of the alleged liens, the court properly ordered their release.
The contention that the liens should have been foreclosed as to the interest of the tenant, Alexander, we do not discuss for the reason there was no proof he had a lease, or any other lienable interest in the property. Under what circumstances, if any, a tenant's estate in real property might be made liable for materialmen's or laborers' liens is not before us for determination.
We find no error. Judgment is affirmed. Costs to respondents.
TAYLOR, C.J., PORTER and SMITH, JJ., and BECKWITH, D.J., concur.