ant is to do the work at his own expense, a mere straw man. On page 248 of 169 Mo., and is expressly denied any authority to bind 69 S. W. 304, the court says the lessee was in the landlord. reality the alter ego of the lessor, the Van Rualte Investment Company. And on page 244 of 169 Mo., on page 305 of 69 S. W., the courts says the mere fact "that the tenant has contracted with the owner to make certain improvements on the leased premises does not make the land, or the landlord's interest in the land, subject to a mechanic's lien. For in such cases the tenant acts for himself, and not as agent for the owner." In this case, also, the court held that it was proper to instruct the jury that if it was the intention, purpose, and understanding between the fee owner and the lessee that the latter should complete the building for the immediate use, enjoyment and benefit of the lessor, and it was completed in pursuance to that understanding, then plaintiff was entitled to a lien against the fee. And our statute and decisions bear this out, when they are carefully examined. For, while section 8212 gives the right to a lien on condition that the material is furnished "under or by virtue of any contract with the owner or proprietor thereof, or his agent," section 8214 gives this lien "to the extent, and only to the extent, of all the right, title and interest owned therein by the owner or proprietor of such building, erection or improvement, and for whose immediate use or benefit the labor was done or the things furnished." And section 8234 defines "owner or proprietor" to be the person "for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made." So that if the repairs and improvements in this case are for the immediate use, enjoyment, or benefit of the lessee, and not of In Crandall v. Sorg, 198 Ill. 48, 64 N. E. the lessor, section 8214 gives the lien to the 769, the lessor was jointly interested with extent, and only to the extent, of lessee's the lessee in erecting the improvements, interest. And if section 8216 applies to a which were to cost $300,000, while the price case where there is a covenant to improve in of the lot on which they were erected was the lease, then it also restricts the lienor to a much smaller sum. The court held that the relief therein provided. It will be no- the defendant, Sorg, was not an ordinary lesticed that by its terms this section is not re-sor, but was actively engaged in erecting the stricted to cases where there is no such covenant. Of course, in a sense, an improvement is a benefit, or may become a benefit, to the holder of the fee; but it is only by looking at the circumstances of each case that it can be determined whether the repairs and improvements are for the "immediate benefit" of the fee. Besides, these words do not define the word "agent," but only the words "owner or proprietor." Passing to our decisions, we find that every one of them which hold that the fee is bound by the lien do so only after examining the facts to see whether or not the lessee is in fact doing the work for the lessor, or whether the improvement is for the present or immediate benefit of the reversionary or freehold interest. In the cases of Dougherty-Moss, etc., Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405, and Curtin-Clark, etc., Co. v. Churchill, 126 Mo. App. 462, 104 S. W. 476, the lessee was bound to change a hotel into a theater at an expense of $20,000, and the property became the lessor's at the end of 10 years. Besides, the lessor obligated the lessee to build, and placed no retriction on his authority to bind with a lien. And the court held that presumptively the lessor made the lessee his agent to bind the whole property for the improvements. But in the case now before us the clause saying the lessee shall have no such authority takes away any such presumption. In the case of Winslow Bros. v. McCully, 169 Mo. 236, 69 S. W. 304, the court bound the freehold interest because the evidence showed that the owner of the fee was really having the work done by the lessee as building, and did not provide that the lessee should have no authority to bind his interest with a lien, but merely contented himself with a stipulation that if any liens were created the lessee would pay them and hold him harmless. The case of Carey-Lombard Investment Co. v. Jones, 187 Ill. 203, 58 N. E. 347, was decided under a statute of that state which authorized a lien against a lessor's freehold if the latter "authorized or knowingly permitted" the lessee to improve the premises, a statute vastly different from ours. In addition to the statute in that case, the court held that by the terms of the lease the right of the lessee to create a lien was recognized and a provision for forfeiture was made, in case any were created. Furthermore, the improvements consisted of a building to cost not less than $6,000, and the lease was for only five years, with privilege of the lessor to terminate sooner, and the lessor had in fact terminated the lease, and the lessor was insolvent. We have carefully gone through all of the cases cited by appellant, and find that in all of them there is either a statute which, by its peculiar terms, authorizes a lien against the freehold without reference to the question of agency, or the facts were such as to make the owner of the freehold directly responsible for the improvements. On the other hand the principle is laid down that a provision in a lease expressly requiring the lessee to make specified improvements or repairs does not make the lessee, in so doing, the agent of the lessor, so as to bind the reversion of the lessor with a mechanic's lien therefor. 20 Am. & Eng. Ency. of Law (2d Ed.) 319; Cornell v. Barney, 94 N. Y. 394; Rothe v. Bellingrath, 71 Ala. 55; Morrow v. Merritt, 16 Utah, 412, 52 Pac. 667. It is true the text says there are decisions to the contrary, but those contrary decisions, without exception, in the facts stated, show either a participation by the lessor in the building in addition to the mere covenant in the lease, thus making the lessee actually the agent of the owner to erect the building, or that the case was decided under statutes which so defined the word "agent" as to bring the person ordering the improvements within the meaning of that term. and cost $5,000, the rent is $3,000 a year, and the freehold interest is subject to a lease which has 96 years to run. There is nothing to show that there is such an entire change of the property as to redound to the immediate benefit of the freehold. The trial court must have thought it was not for the benefit of Mrs. Orear, since it found in her favor. There is no hint or claim of fraud or unfair dealing between the lessor and lessee herein, or of lack of notice to the materialman. In order to reverse this case and direct the freehold interest to be subject to the lien, we must hold that, simply because the lease contained a clause by which the lessee obligated itself to make certain repairs and improvements, this made it the agent of the lessor, so as to bind the freehold interest with a mechanic's lien, regardless of the facts. We are unwilling to go thus far. [4] We do not wish to be understood as holding that a lessor can, by merely providing in the lease against liens, set aside the mechanic's lien law. We make no such ruling. Wherever the facts show that the improvements are really for the present ben And it has been held that the fact that the lease requires the improvement to be made does not render the lessee a "contractor" of the lessor. 20 Am. & Eng. Ency. of Law (2d Ed.) p. 320; Block v. Murray, 12 Mont. 545, 31 Pac. 550. So that we are constrained to hold that the mere inclusion in a lease of a covenant to improve and repair does not, of itself, make the lessee the "agent" of the lessor, within the meaning of the mechanic's lien statute. But, in order to bind the interest of the lessor, the improve-efit of the freehold interest, or that they ment must be of such a character and extent, or made under such circumstances, as to show that the improvements were made, either by the lessor acting through the lessee as his agent, or made for his (the lessor's) "immediate use, enjoyment or benefit." are made under such circumstances as to indicate that the lessor is really having the improvements made, or that he has constituted the lessee his agent to make them, or where, by reason of the terms of the lease, the value and extent of the improvements, and the relative length of the term, it can be seen that the improvements substantially [3] This brings us down to the facts in the case as to the character of the improvements and the circumstances under which they were increase the value of the freehold interest made. No dealings of any kind are shown primarily, and not merely as a future, incion the part of Mrs. Orear. The improve- dental matter, then the lien against the lessor's interest will be upheld, without regard ments consisted in repairing a three-story store building already on the ground. It is to the language of the lease concerning liens. true an extension of or addition to the build-Upon the facts in the case before us, howing was made; but there is nothing to show what part of the materials of this claim were used in the repairs, nor what part in the extension. Some of them were used in changing the interior arrangements, which presumably were for the convenience of the lessee in his business. The record does not show that the rents were increased by the change, or that the value of the freehold has been enhanced for the purpose for which the lessor was using the property prior to the time of the lease. No declarations of law or finding of facts were given from which it can be determined whether the improvement is for the immediate use and benefit of the freehold interest or not. In fact, it would appear that such benefit will not accrue until the end of the 99 years, and the lease has 96 years to run yet. By that time the improvements made will have decayed. There is no showing that the Comet Realty Company is insolvent, or that the lease is in any danger of being foreclosed. The improvements were made on a three-story store building on Grand avenue, in Kansas City, ever, we are not able to say that these conditions, or any of them, exist, and we therefore follow the trial court and affirm the judgment. All concur. WEINBERGER v. INSURANCE CO. OF 1. EVIDENCE (§ 441*)-CONTRACTS-MERGer of One accepting a fire policy and agreeing to keep his books locked in a fireproof safe at night may not contradict the policy by a prior oral agreement abrogating the iron-safe clause. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*] 2. INSURANCE (§ 378*) - FIRE INSURANCE — FORFEITURE-WAIVER. A waiver of a forfeiture of a fire policy may not rest on the prior knowledge of the agent of insurer, inconsistent with the policy; but where an agent, when he solicits fire insurance and delivers a policy, is informed that insured has no iron safe and will not procure | books which shall clearly and plainly present one, and will not keep his books away from the a complete record of business transacted, inbuilding, and accepts a premium covering the continuing risk, and takes no exception to the cluding all purchases, sales and shipments continued violation of the iron-safe clause, the both for cash and credit, from the date of provision is waived. such inventory and during the continuance of this policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.*] 3. INSURANCE (§ 664*) - FIRE INSURANCE IRON-SAFE CLAUSE-WAIVER-EVIDENCE. Where, in an action on a fire policy containing an iron-safe clause, insured relied on a waiver of forfeiture for violation of the clause, evidence that the soliciting agent of insurer was informed, prior to the issuance of the policy, that insured had no safe and did not intend to keep one was admissible in connection with other evidence that insurer, with such knowledge, accepted and retained premiums without objecting to the failure to keep a safe. [Ed. Note. For other cases, see Insurance, Cent. Dig. 8 1555, 1687, 1688, 1699; Dec. Dig. § 664.*] 4. WITNESSES (§ 255*)-PRIVATE MEMORANDA -USE TO REFRESH MEMORY. Where the books of insured were destroyed by fire, and he was compelled to prove the items of his loss by his manager, who immediately after the fire prepared from memory an itemized list of the goods destroyed, and the manager testified to the accuracy of the list, the court, in an action on the policy, properly permitted him to use it to refresh his memory. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*] Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge. Action by L. M. Weinberger against the Insurance Company of North America. From a judgment for plaintiff, defendant appeals. Affirmed. Fyke & Snider and Simrall & Simrall, all of Kansas City, for appellant. Sharp & Sharp, of Kansas City, for respondent. JOHNSON, J. This is an action on two policies of fire insurance covering a general stock of merchandise owned by plaintiff and contained in a general store operated by her in the town of Vibbard. The stock was completely destroyed by fire during the currency of the policies, one of which, issued April 26, 1911, was for $1,000, and the other, issued January 8, 1912, for $500. Each policy contained the agreement "that in the event of loss or damage by fire to the property covered by this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash market value of each item of said property," etc., and further provided: "(1) That the insured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, the same shall be taken in detail within thirty days thereof, or this policy shall be then null and void, and on demand of the insured the unearned premium from that date shall be returned. "(2) That the insured shall keep a set of "(3) The insured will keep such books and inventory and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in the policy is not actually open for business, or failing in this, the insured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building; and in case of loss, the insured specifically warrants, agrees and covenants to produce such books and inventories for the inspection of this company." The policy, dated April 26, 1912, was a renewal of one for the same amount issued a year before. Plaintiff embarked in business in Vibbard with a stock of goods she had purchased of a merchant in a nearby town. Her husband was her agent and the manager of the business, and he increased the stock from time to time by additions of new goods purchased from wholesale merchants. conducted the business some time without He carrying insurance on the stock, but in April, 1911, applied to defendant's agent at Excelsior Springs for a policy of insurance. In response to the application the agent inspected the stock, the market value of which was about $1,700, and was informed by the manager that plaintiff intended to carry insurance to the amount of $1,500, but desired a policy for only $1,000 at that time, and that later she would take an additional policy for $500. The manager testified: "Mr. Thomas (defendant's agent) came in the store to inspect it, and I told him I want $1,500, but didn't feel like having him write up more than $1,000; that I couldn't go to the expense of paying the premium then, so I would just take $1,000; and he told me what the rate would be, after going and talking to a gentleman he had with him, and then he told me he would write me the policy, and then asked me whether I had an invoice and kept books, and I told him all the books I kept was a cash account and expense; I was not doing any credit business, and my inventory had been taken just a few days prior; and he said that was all right. 'Where do you keep your books?' I showed him on the counter. I had a little place where I kept my books, and he said, 'Where do you keep them at night? and I told him I took them home whenever I rode, and when I walked I almost invariably left them there. I usually drove back and forth most of the time. I told him I thought the value of the stock was about $1,700 at that time. He said I ought to have a safe and keep these things locked up in case of fire, and I told him I had no safe, and after telling him that *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes I was carrying them home most of the time he says: That will be all right; not likely, if you leave them here, any accident would occur at the time.' He didn't see the books at that time; he was not asked to inspect or look at them. He told me he would write me the insurance; that he would write a policy for $1,000; and that whenever I got ready for the further $500 to let him know, and he would send me another policy for the additional $500. When I got ready for the increase, I sent him word, and he came out and brought the policy." and without objection or warning to plaintiff continued to act as though the insurance were in force until the loss occurred, when, for the first time it complained of plaintiff's breach of contract. [2] The rule is well settled that "if a contract includes provisions which, if not complied with, involve a forfeiture, and the party, for whose benefit the provisions were inserted, knowing the other party is not complying with them, makes no objection and acquiesces therein, he waives the forfeiture." Riley v. Insurance Co., 117 Mo. App. 229, 92 S. W. 1147, and cases cited. Further, we said in the case just cited: "The waiver cannot rest alone on the agent's prior knowledge or understanding which is inconsistent with the writing afterwards made, for the contract is not then in existence. It is necessary that there be subsequent conduct which is inconsistent with an intention to insist on the forfeiture. If an agent for an insurance company, at the time he solicits the insurance and delivers the policy, is informed that the party solicited has no iron safe, and that he will not procure one, and will not keep his books away from the store, yet, after the policy is delivered, accepts of him a premium covering the continuing risk, and with such knowledge takes no exception to the continued violation of the forfeiture provision, and takes no steps, by objection or otherwise, in recognition of his right of forfeiture, he will be deemed to have waived it; for he thereby. causes the assured to believe the forfeiture will not be insisted upon. 'If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened, to then allege anything to the contrary; for he, who will not speak when he should, will not be allowed to speak when he would.' Pelkington v. Insurance Co., supra [55 Mo. 172]. Evidence of the agent's knowledge prior to the time of the execution of the written contract will not be received to vary or alter such contract; but, on the subject of waiver of the contract, it can, in a proper case, be rightly admitted to connect with and aid in the proof that he, after the execution of the contract, had knowledge that the assured was not complying with the forfeiture provisions." [1] Following this conversation defendant issued a policy to plaintiff, dated April 26, 1911, and on the 8th day of January, 1912, issued an additional policy for $500. Plaintiff paid the premiums on both policies, and also the premium on the policy issued in renewal of the first one. These premiums were accepted and retained by defendant, though the agent, who countersigned and delivered the policies, had knowledge from the first of the fact that plaintiff was not complying with the iron-safe clause and intended not to comply with it. The agent introduced as a witness by defendant denied the conversation relating to the iron-safe clause and stated that he had no knowledge of the violation of that condition of the policy prior to the loss. It is conceded that plaintiff did not perform that condition, and the principal issue presented by the pleadings and evidence is whether or not there was a waiver by defendant of its right to forfeit the policy on the ground of plaintiff's nonobservance of the iron-safe clause. Counsel for defendant argue that the court erred in admitting, over their objection, testimony of the conversation relating to plaintiff's intention to keep the books in the store at night on certain occasions. Since this conversation occurred before the issuance of the first policy, we agree with defendant that it can be given no contractual effect. The elementary rule of the law of contracts, that all prior and contemporaneous oral agreements between the parties become merged in the written contract, applies as well to contracts of insurance as to other classes of contracts. In accepting the policy plaintiff agreed to keep her books securely locked in a fireproof safe at night, or to keep them in some place not exposed to a fire that would destroy the property insured. This agreement was in the nature of a warranty, and plaintiff would not be heard to say that its contractual potency was destroyed by a prior oral agreement. We do not understand that she is attempting to stand on such ground. She concedes that the oral agreement cannot be accorded the effect of abrogating or varying the terms of the policy; but her position is that the testimony is admissible on the issue of waiver, for the reason that it tended to prove that defendant, when it received and retained the premiums paid by plaintiff, had knowledge of the existence of the ground of forfeiture, forth the apparently abandoned ground of [3] We reaffirm that statement of the law and hold that it is conclusive of the question under consideration. The evidence was properly admitted because of its bearing on the subject of a waiver of the contract. The agent, who represented defendant in the transaction, was its alter ego, and if he knew that plaintiff had no safe in the store and did not intend to keep one there his knowledge was defendant's knowledge, and if, with such knowledge, defendant accepted and retained the premiums without objection to the course of plaintiff, it would be most unjust to allow it to bring forfeiture as a defense to an action on the without first obtaining permission from the policy. The point made by defendant that the court erred in refusing the only instruction asked by defendant is sufficiently answered in what we have said on the subject of waiver. The instruction is not in line with the view of the law we entertain, and was properly refused. [4] Plaintiff's books were destroyed in the fire, and she was compelled to prove the items of her loss by her manager and a clerk, who immediately after the fire prepared from memory an itemized list of the goods destroyed. The manager testified to the accuracy of the statement, and we think the court did not err in allowing him to use it, while he was on the stand, for the purpose of refreshing his memory. The court, on its own motion, gave instructions that fully and properly covered and defined the issues of fact. Defendant offers but one objection to these instructions, and it obviously is not well founded. The cause was tried without prejudicial error, and the judgment is affirmed. county court resulting in injury to another perdamages, is penal, requiring one relying thereson, shall forfeit to the other person double on to bring himself clearly within its terms. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244–250, 256-259, 263, 264; Dec. Dig. § 179.*] Appeal from Circuit Court, Daviess County; Arch. B. Davis, Judge. Action by John Plymell against Joseph T. Meadows. From a judgment for defendant, plaintiff appeals. Affirmed. John C. Leopard, of Gallatin, and Wilson & Wilson, of Platte City, for appellant. Boyd Dudley and J. A. Selby, both of Galla tin, for respondent. ELLISON, J. Plaintiff's action is based on section 8750, R. S. 1899 (now section 5477, R. S. 1909), whereby he seeks to recover double damages for obstructing and damming a certain water course in Daviess counPlaintiff obtained a verdict for $10, and he sought to have it doubled by the court. The motion to that effect being overruled and judgment being entered for him for only the amount of the verdict, he ap ty. ELLISON, P. J., concurs. TRIMBLE, J., pealed to this court. not sitting, having presided at the trial. PLYMELL v. MEADOWS. (Kansas City Court of Appeals. Missouri. April 21, 1913.) 1. WATERS AND WATER COURSES (8 179*) – CONSTRUCTION ACTIONS SUFFICIENCY OF PETITION. The action was for damages under Rev. St. 1899, § 8750, providing that one who built any dam across any water course without permission from the county court resulting in injury to another should forfeit to the injured person double damages, and the petition alleged that defendant built a dam across a water course on his own land, causing it to overflow on plaintiff's land, and that the said dam was built without authority of law, and contrary to statute as provided in Rev. St. 1899, §§ 8729-8755, and further alleged that the dam was built without authority of law, and was therefore a public nuisance under the law, as declared by Rev. St. 1899, § 8752, and that plaintiff was damaged in a certain sum and by reason of section 8750, Rev. St. 1899, is entitled to recover double damages for his injury. Held, that the petition is insufficient to author ize recovery of double damages under the statute for not alleging that the dam was built without first obtaining permission from the county court. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. § 179.*] 2. PLEADING (§ 8*)-CONCLUSIONS. An allegation that a dam was built "without authority of law" alleged a conclusion. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-282, 68; Dec. Dig. § 8.*] 3. WATERS AND WATER COURSES (§ 179*) DAMS-ACTION FOR PENALTY. Rev. St. 1899, § 8750, providing that one who builds any dam, etc., across a water course It appears that defendant offered to allow judgment to go against him for $15.50, and that the offer was not accepted. Therefore, unless plaintiff can succeed in getting the verdict doubled, he will be mulcted with the costs. The determination of the right of the trial court to do this will decide the case. The section of the statute above referred to reads as follows: "Any person who shall build or heighten any dam, or any other stoppage or obstruction on or across any water course, without first obtaining permission from the court of the proper county, according to law, and shall thereby work any injury to any other person, shall forfeit to the party injured double damages for such injury, to be recovered by civil action." [1, 2] Defendant insists that the petition is not sufficient to bring plaintiff's case within the statute, and that, therefore, the trial court was right in refusing double damages. The petition sets up plaintiff's ownership of certain lands, and that defendant owned a certain other tract adjoining, and that a certain water course ran through these lands; that defendant built a dam across the course on his land causing it to overflow onto plaintiff's, etc. It is then alleged "that the said dam or dike was built without authority of law and contrary to the statutes of the state of Missouri as provided in Statute 1899, chapter 131." Further on the petition alleges that the "dam or dike was built without authority of law as above set out, and that it is therefore a public nuisance under the law, and is so declared by section 8752, R. S. 1899." Then, at the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |