
    PICKEL MARBLE & GRANITE COMPANY, Respondent v. THE APOLLO TURKISH BATH COMPANY et al., Defendants, A. H. HANDLAN, Appellant.
    St. Louis Court of Appeals,
    October 23, 1900.
    • Mechanic’s Lien: WITHOUT CONTRACT WITH DEFENDANT, NO LIEN MAINTAINABLE. The . evidence shows that the material was furnished and the improvements made under contract with the defendant Apollo Company and for its sole use and benefit. Held, that its leasehold interest might have been subjected to a mechanic’s lien for their value by proceeding in the proper way, but that Handlan’s interest in the property can not be reached in this suit.
    
      Appeal from the St. Louis City Circuit Court. — Hon. Pembrook B. Flitcraft, Judge.
    Reversed.
    
      Dickson & Smith and Daniel O. Taylor for appellant A. H. Handlan.
    (1) Where it is sought to charge land with a mechanics’ lien, there must be a contract with the owner, or his agent, trustee or contractor; mere consent or knowledge or subsequent approval is not sufficient. The term “owner” means the person for whose immediate use, enjoyment or benefit any erection is made.- R. S. 1899, sec. 4203; Planing Mill Co. v. Burndidge, 25 Mo. App. 272; Lauer v. Bandow, 43 Wis. 565; Squiers v. Eithian, 27 Mo. 124; Horton v. Railroad, 84 Mo. 602; Eathman v. Christopel, 60 Mo. App. 106. (2) A person furnishing materials for improvements must take notice of the interest of the person with whom he contracts, for the lien only attaches to such interest. Koenig v. Mueller, 39 Mo. 165; Reisse v. Mueller, 39 Mo. 169; McCarthy v. Carter, 49 111..53; Judson v. Stevens, 75 111. 255. (3) A mechanics’ lien arising out of a contract with a lessee will only bind the leasehold estate of the person with whom the contract is made. R. S. 1899, sec. 4206; Cornell v. Barney, 94 N. Y. 394; Knapp v. Brann, 45 N. Y. 207; Roth v. Bellingath, 71 Ala. 55.
    
      Bobt. L. McLaran and Jared W. Young for respondent.
    (1) Plaintiff furnished its work and material under a contract with the Apollo Company, the original contractor with Handlan. (2) The evidence of Handlan’s leasehold interest in the property sufficiently appears from his own admission in the contract for lease. (3) Plaintiff’s lien notice substantially complied witb tbe requirements of tbe statute. Eruin-Bambrick Co. v. Jones, 60 Mo. App. 1; Midland Lumber Co. v. Kreeger, 52 Mo. App. 418.
   BLAND, P. J.

— Defendant Handlan held a 99-year lease on premises in tbe city of St. Louis known as No. 821 Locust street. In May, 1898 tbe Apollo Turkish Batb Company went into possession of tbe premises under a contract witb Handlan for a ten-year lease thereon, wbicb contract contained tbe following provisions:

“Fifth. There is to be a marble floor laid in a portion of tbe basement by tbe party of tbe first part (Apollo Company) at its own expense, and. thereupon the said Handlan shall allow and pay to tbe said company on account of said floor, tbe. sum wbicb would be tbe reasonable price of good, standard granitoid flooring, bad such, flooring been laid in tbe basement. Tbe balance of said floor to be laid in granitoid at tbe owner’s expense.”
“Sixth. The area under tbe sidewalk in front shall be constructed by said Handlan, if a permit can be secured for same * *
“Ninth. Tbe marble work put in by tbe batb company and all movable fixtures and apparatus placed there intended by tbe tenant for fitting up tbe premises for tbe purposes of tbe Turkish batb business shall belong to tbe tenant and may be removed by tbe tenant at tbe end of bis term, provided be has paid all of said rentals due and payable under tbe terms of said lease.”

On November 21 following, tbe lease was executed and delivered in pursuance of tbe contract. This lease witb reference to repairs, contained tbe following provisions:

“All repairs and alterations deemed necessary by said lessee to be made at its own cost and expense and all repairs and alterations so made to remain on the premises without cost to the lessor except specifically such as are hereinafter stipulated.”
“The lessor is to allow the lessee as credit on rent for the amount of marble work in floor of basement as provided for in fifth clause of (contract of) lease between these parties, dated May 10, 1898, same to be 18c per square foot for the surface covered by marble floor laid in basement, amounting to $104.91, and for which proper receipt rendered shall be executed. The marble work to be no part of this lease, and all movable fixtures, apparatus, fittings, furniture and so forth placed in the building by the lessee and intended to fit up the premises for the purpose of a Turkish bath business belong to the lessee and may be removed by it at the termination of this lease, provided all rental shall have been paid for and all provisions herein provided for shall have been complied with. It is understood, however, that the marble flooring in basement belongs to the lessor and shall remain on the premises.”

After taking possession of the premises the Apollo Com-' pany contracted with plaintiff for the setting of 925 square feet of Italian marble tiling, estimated to cover the entire basement floor of the premises. The contract price of $1,258 for the material and labor was paid in money and secured notes. It was found when laid that the 925 square feet of tiling did not cover the entire floor. The Apollo Company then ordered the plaintiff to furnish and set an additional amount of marble tiling sufficient to complete the floor. Under this order the plaintiff between the eighteenth and twenty-sixth day of November, 1898, furnished and set 275 feet of Vermont marble tiling, for which plaintiff charged $123.75. The Apollo Company failed to pay this bill. Notice was given to Handlan under the mechanics’ lien act. A lien paper was filed in the recorder’s office and in due time suit was brought to enforce the lien. Plaintiff recovered judgment for the enforcement of its lien., Handlan appeals.

There is not to be found in the contract for the lease, in the lease itself, nor a word of testimony anywhere in the record indicating that the material was- furnished and the improvement w>as made under a contract with Handlan, or with any one who acted or pretended to act as his agent. The material was furnished and the work doné under contract with the Apollo Company, and for its sole use and benefit, and its leasehold interest, not Handlan’s — might have been subjected to a mechanics’ lien for their value, had the proper steps been taken. The judgment establishing the lien against the leasehold interest of Handlan is reversed.

All concur.  