
    Carroll, Jr., v. Garros & Miller et al.
    (Decided June 5, 1933.)
    
      Mr. George 8. Hawhe, for plaintiff in error.
    
      Mr. Raymond J. Wilson and Mr. James J. Fitzpatrick, for defendants in error.
   Eoss, J.

This is a proceeding in error from a judgment of the court of common pleas of Hamilton county-in favor of the defendants therein.

The action was upon an account for labor and material furnished Garros & Miller in repairing a restaurant leased by them from the Bien estate, and for foreclosure of a mechanic’s lien upon the premises so leased.

The answer of the Bien estate admits the lease to Garros & Miller, but alleges the cancellation and surrender thereof, due to the default of the lessees. It is further alleged that the lessees assumed all necessary repairs.

The evidence shows that the Bien estate made a lease for ten years to Garros & Miller; that the lessees were in possession at the time the labor and material were furnished them, and that such labor and material were employed in the repair and improvement of the premises owned by the Bien estate, not a new building, and under lease to Garros & Miller; that the lease was recorded, and provided for the terms of default under which the lessees were compelled to submit to cancellation of the lease and surrender, of the premises, and that the lease provided that the tenants were to make the necessary repairs.

It also appears that the lease was. surrendered and the premises repossessed before the lien was filed or the time for filing same had expired.

The simple question presented is: Bid these facts entitle the plaintiff to a lien upon the premises of the owner lessor? We can find nothing in the Ohio lien law so providing.

Section 8317, General Code, applies to new buildings, and is therefore inapplicable to the state of facts here presented.

The provisions of the lease were subject to- inspection by the contractor, and he is presumed to know that, what occurred could occur when he furnished the labor and material. It is admitted that he knew he was dealing with a tenant. The leasehold was therefore all that conld be subjected to the lien, and this having been surrendered and cancelled, there is nothing upon which the lien can attach.

"Where,-under the provisions of a lease for a term of years at a stipulated rental, certain repairs and improvements are to be made upon a building at the lessee’s expense, which are to remain at the termination of the lease, the lessee is not thereby constituted the agent of the lessor, and the latter is not rendered liable by a contract entered into by the former in his own name for labor and materials to make such improvements ; nor can the reversion in fee of the lessor be subjected to a lien for labor and materials furnished to the lessee pursuant to such contract.” Mahoning Park Co. v. Warren Home Development Co., 109 Ohio St., 358, syllabus, paragraph 3, 142 N. E., 883.

The judgment of the court of common pleas will therefore be affirmed.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.  