Langston v. Matthews , 117 Ark. 626 ( 1915 )

Hart, J.,

(after stating the facts). ¡Section 4970 of Kirby’s Digest gives a mechanic’s lien to every mechanic, builder, etc., who shall perform any work upon or furnish 'any material for any building or for repairing the same “under and by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, ’ ’ upon complying with the provisions of the act.

The lien exists only by virtue of the statute, and it is conceded that the estate of the owner can not be subject to a lien for work done or materials furnished at the instance of the tenant unless the tenant may ¡be regarded as the agent or trustee of the owner.

Counsel for the plaintiff relies for a reversal of the judgment upon the case of Whitcomb v. Gans, 90 Ark. 469, where it was held that where a lessor consents to the making of improvements by his lessee to be paid for by deductions from the rent the property will be subject to a mechanic’s lien for the improvement. The reason is that the stipulation in the lease that the repairs anight be made and'the cost taken out of the rent is equivalent to making the lessee the agent of the lessor for the purpose of making, the repairs.

In the case before us there was n.o contract between the landlord iand tenant for repairs. It was optional with the tenant as to whether any repairs should be made, and if he should desire to make any they were to be made at his own expense. Therefore the tenant in making the repairs, acted for himself, and no lien, under the statute, will attach to the property of the lessor.

It is true the landlord made a reduction of four dollars in the rent, but this was done after the repairs had been made. There was no agreement beforehand to make the deduction, and it was made by the landlord because the tenant had suffered misfortunes and not because of the repairs.

It is true also that one of the owners of the property saw the plaintiff making repairs. But he did nothing whatever from which the plaintiff might have inferred that he consented to the making of the improvement and intended that the property should be bound therefor. Under these circumstances, the lessee acted for himself, and no lien attached.

The judgment will be affirmed.