
    Earl LA PAN, Appellant, v. CASCADE ENTERPRISES, Inc., Milton F. Steinhardt and Esther Steinhardt, as guardians of Joan and Raphael Steinhardt, Minors, and Edward Don & Co., Appellees.
    Supreme Court of Florida. En Banc.
    Jan. 4, 1957.
    On Rehearing March 27, 1957.
    James J. McVeigh, Miami, for appellant.
    Courshon & Courshon, Miami Beach, for appellees Milton F. Steinhardt and Esther Steinhardt as guardians of Joan and Raphael Steinhardt.
    Arthur D. Frishman, Miami Beach, for appellee Edward Don & Co.
   THOMAS, Justice.

The appellant prayed for the foreclosure of a lien tor services he performed and materials he furnished in decorating certain property with murals and sculpture. He was employed by a lessee and in his suit he joined as defendants, with the lessee, the guardians of the lessors, and the assignees of a collateral assignment of the lease.

Before the suit was brought the lessee had ceased business and had forfeited all its rights under the lease because of failure to fulfill its obligations, and the appellant considered that there was no interest of the lessee to which his lien could attach. He failed to fasten a lien on the title of the lessors, so the chancellor ruled when he entered summary decree following his opinion that there “[was] a clear absence of any actual agency, or any lease requirement for the improvements such as are necessary to subject the fee to the lien.”

The appellant represents that his right to a lien or lack of it, depends on the question whether or not the lessors in effect established the lessee as their agent with authority to subject the property to liens for labor done and material furnished in improvements which the lessee was bound by the lease to furnish. The appellant relied on Sec. 84.03(2), Florida Statutes 1953, and F.S.A., which contains the provision: “When an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor.”

We turn now to the lease to learn its' terms with reference to improvements that were to be made by the lessee. To meet the requirements of the instrument, the lessee, as soon as it was executed, placed in escrow $50,000 to be used to “furnish and equip” the premises and all bills for those purposes were to be paid from the escrow fund when approved by both lessor and lessee. If the sum in escrow proved insufficient to pay for the “furniture, furnishings and improvements,” required by the lease then the lessee was privileged “to purchase additional furniture, furnishings, and fixtures” on stated terms. It was stipulated that the lessee should buy “furniture, furnishings, fixtures and equipment” in an amount not less than $50,000.

The lessor was obligated to “complete the improvements and buildings * * * in the course of construction” at the time the lease was executed.

It was specified in the lease that the property was to be used as a cocktail lounge, restaurant, store for the sale of beer, wine and liquor in packages, and for allied purposes.

The lessee pledged to the lessor as security for the rent all furniture and fixtures put upon the premises by it and agreed that all the fixtures, furniture and furnishings should become the property of the lessor and be surrendered with the premises upon expiration of the lease for any cause.

From the parts of the lease pertinent to this controversy we gather that in-completed buildings were being leased to the lessee and that the lessor was bound to finish them while the lessee was obligated to provide furniture, furnishings and fixtures. The combined efforts of the parties would result in the whole property being put in such condition that it would be attractive to customers and produce income.

Considering the nature of the agreement as well as the use to which the property was restricted, it is apparent that decoration was contemplated by the parties.

Within two months after the execution of the lease the appellant and the lessee-contracted for the design and direction by-the former of interior and exterior decorative work, and materials required for the sum of $6000. One of the lessors actually participated in negotiating the contract between the appellant and the lessee, and' after the work was begun, observed the-appellant performing it. Moreover it is. shown in the record that the contract price-was reduced to the amount now claimed: by payments from the escrow fund.

Inasmuch as we construe the lease to. have required the lessee to furnish the decorations which the lessee employed the-appellant to provide, we hold that the appellant was protected by the statute we-have quoted.

The lessor had an immediate advantage-because the security for his rent was enhanced, and he had an ultimate interest-because he was to get all improvements,, furnishings, and so forth, provided by the-lessee.

After considering the lease as a whole,, we come to the conclusion that the work, appellant was employed by the lessee to. perform amounted to “an improvement * * * made by [the] lessee, in accordance with [the] contract between such lessee and his lessor,” and that consequently the lien of appellant extended also “to the interest of such lessor.” (Italics supplied.) Robert L. Weed, Architect, Inc., v. Horning, 159 Fla. 847, 33 So.2d 648.

We decide that the chancellor erred when he held that a summary decree should be entered in favor of the lessors.

The summary decree is reversed with directions to proceed in accordance with the views we have expressed.

TERRELL and THORNAL, JJ., and PATTERSON, Associate Justice, concur.

DREW, C. J., and HOBSON, J., concur in part and dissent in part.

ROBERTS, J., dissents.

DREW, Chief Justice

(concurring in part and dissenting in part).

I concur in the judgment of reversal but not because of the reasons stated in the main opinion. I do not find in the record any basis for the conclusion of the trial court that there was “a clear absence of any actual agency or any lease requirement for the improvements such as are necessary to subject the fee to the lien.” On this subject the record is bare. Even were I to agree with the view expressed in the opinion of Justice THOMAS that the record did establish agency sufficient to bring it within the provisions of Section 84.03(2), F.S.A., there is nothing in the record to establish that the balance due on the contract was for labor or materials which could afford the basis for a mechanic’s lien on real estate. The contract dated August 25, 1953 described the work to be done as:

“Design and direct all interior and exterior decorative work, which includes Dining Room, two Lounges and Patio.

Murals and/or sculpture or both to be executed by the Party of the Second Part, who will also apply canvas to the walls where murals are used, in Dining Room and both Lounges.

“The Party of the Second Part will present sketches for the above mentioned work to be approved by the Party of the First Part, Sketches will also be provided for match covers, stationery and Menu.”

The claim of lien duly recorded in the public records of Dade County and made an exhibit to the complaint states that the lienor claims the lien for labor and services performed and materials furnished “as per contract of August 25th, 1953, in the designing, painting and sculpturing, and the furnishing of all materials therefor, of the following decorative objects, to-wit:

“2 8 feet X 28 feet murals.

1 7 feet X 25 feet mural.

2 7 feet X 18 feet murals.

1 12 feet X 25 feet murals.

2 4' X 6' Shadow Box.

1 Black Orchid, 4' in diameter.

1 Negro Mask, 1$ X life size.

to the value of Six Thousand ($6,000.00) . Dollars on the following described real property.

"1601 79th Street Causeway in the town of North Bay Village, Dade County, Florida.”

The answer of the defendant specifically denied that the work above set forth for which the lien was claimed would afford a basis for such a lien. There is nothing in the record which sheds the slightest bit of light on this basic point.

The majority opinion holds that the amount due for the above described objects may be made the basis of a mechanic’s lien on real estate. I think this is a clearly erroneous conclusion. Tables and stools, television, paintings, curtains and other things are an essential part of a bar but surely the purchase price thereof cannot be the basis of a mechanic’s lien on the realty. It could be that the murals are attached to and form a part of the realty but we have no right ■to assume that as a matter of law. A “mural” could be painted on canvas (as was ■contemplated by the contract) and hung on the walls the same as a portrait or other painting. I think the “shadow box”, the “black orchid” and the “negro mask” are obviously personal property, but I don’t have the right to assume this as a matter of law. The record is simply devoid of evidence on which either this or the lower court could properly decide the issues.

I conclude that the decree appealed from should be vacated but with directions to proceed to take testimony on the question of agency as well as the question of whether the work performed by the contractor was of the nature which would afford a basis for a mechanic’s lien.

HOBSON and ROBERTS, JJ., concur.

On Rehearing Granted

PER CURIAM.

On rehearing granted and upon further consideration of the issues involved in this cause, the judgment of the Court in the majority opinion filed herein January 4, 1957 is hereby vacated.

It is further ordered on rehearing granted that the decree appealed from is hereby vacated and set aside with directions to the trial court to take testimony on the issues presented by the complaint and answer in said cause including, but not limited to, the question of agency and the question of whether the work performed by the contractor was of the nature which would afford a basis for a mechanic’s lien.

Reversed and remanded.

H'OBSO'N, ROBERTS, DREW and THORNAL, JJ., and PATTERSON, Associate Justice, coucur.

TERRELL, C. J., and THOMAS, J., dissent.  