Ninneman v. City of Lewiston

AILSHIE, J.

— This ease is controlled in its principles of law by the decision just announced in Chamberlain et al. v. City of Lewiston, ante, p. 154, 129 Pac. 1069. It will be necessary, however, for the judgment to be modified in this case so as to eliminate therefrom the value of tools and appliances which did not go into or become a part of the work or improvement, and were not used or consumed in or about the work. ' A lien cannot be allowed for tools and appliances which are the property of the contractors and may be used from time to time in other works and upon other contracts, and which are not consumed in the work or which do not go as a part of the building or improvement and necessarily enter therein. (Darlington Lumber Co. v. Westlake Construction Co., 161 Mo. App. 723, 141 S. W. 931; Boisot, Mechanics’ Liens, sec. 123; Rockel, Mechanics’ Liens, sec. 18.)

The district court will therefore be ordered and directed to enter a modified decree, deducting from the original decree the amount included therein for such tools and appliances. Judgment ordered modified and affirmed accordingly. Costs awarded in favor of respondents.

Stewart, C. J., and Sullivan, J., concur.