The opinion of the court was delivered by
Lowrie, C. J.In one aspect this is a lease for years, for a rent payable in improvements; and in another, it is a contract for the erection of a warehouse for a consideration payable partly in money and partly out of the profits of the land. We do not get a complete view of the relation established, without looking at it in both these aspects. And very evidently the latter aspect presents its predominant characteristics; for, on several contingencies, the lease was to terminate, and the parties were to settle as on a mere contract for building, charging rent up to the time of such termination; and in any event, half the cost of building was to be paid in money. We think it ought to be regarded as a building contract, rather than as a lease, when we are seeking the secondary rights of the mechanics who did the work. In so doing, we do not confound building contracts, payable in rents, with improvement leases; though we do not anticipate experience by any theoretical definition of their exact differences. Our most common improvement leases provide only for such labour as is to be done by the tenant himself and his servants, and no question of mechanics’ lien can arise on them. But contracts of letting and building are infinitely various in their forms, and no definition of ours can prevent this variety, for none would be bound to conform to it; and we must be content to ascertain, as cases arise, the special character of each contract, and the class to which it belongs. The error assigned is sustained.
Judgment reversed, and a new trial awarded.