King Bros., Inc. v. Utah Dry Kiln Company

CROCKETT, Chief Justice.

This appeal is the sequel to King Bros., Inc., v. Utah Dry Kiln Company.1 Plaintiff sued to recover for the value of a furnace and appurtenances which it had furnished and a contractor had installed in the *45construction of a lumber-curing plant of the defendant, Utah Dry Kiln Company, near Panguitch, Utah. The action is based on the fact that the defendant in connection with building its plant failed to obtain the performance bond required by Secs. 14-2-1 and 14 — 2-2, U.C.A.1953, the pertinent language of which provides:

1. The owner of any interest in land entering into a contract, involving $500 or more, for the construction, addition to, or alteration or repair of, any building, structure or improvement upon land shall, before any such work is commenced, obtain from a contractor a bond * * * conditioned for the * * * prompt payment for material furnished and labor performed under the contract.

and

2. Any person * * * who shall fail to obtain such * * * bond * * * shall be personally liable to all persons who have furnished materials * * * for the reasonable value * * *.

The only point of consequence in this case is the defendant’s contention, accepted by the trial court, that defendant was not required to obtain the bond because it was not shown to be the owner of any interest in the land upon which the plant was constructed. We are not persuaded of the correctness of this contention.

As was pointed out in Metals Manufacturing Co. v. Bank of Commerce,2 these statutes should be interpreted and applied in such manner as to carry out the purpose for which they were created: to protect those who supply labor and materials. That case is cognate to the instant one. The Bank had a 10-year lease on a building under an agreement which provided that it could “make alterations, attach fixtures and erect additions * * ■ * ” which should remain the property of the lessee (the Bank) and be removed. This court rejected the contention of the Bank that it had no obligation to obtain a performance bond in connection with the installation of certain aluminum railings and gates which were affixed to the floor by screws. We held that irrespective of the agreement of the parties inter se, as to. third-party suppliers, the installation should be regarded as part of the realty. It was pointed out that it would be unfair to bind such suppliers to the terms of agreements to which they were not parties and of whose contents they had no knowledge.

By analogy, the same principle applies here. Plaintiff, as a supplier of a furnace and heating system to be installed in a lumber-curing plant, would have no practical way of knowing the details of arrangements between the one who was building the plant with others who may have actual title to the ground; and it would not *46seem to depart from ordinary good sense and business judgment for the plaintiff to assume that the defendant who had a plant costing in excess of $30,000 had at least some interest in the property upon which it was situated. However, as will be seen below, the solution of the problem here confronted is not entirely dependent upon who owned the title to the underlying land.

The statutes quoted above, which require the owner to obtain a bond from a contractor, are a natural development upon the mechanic’s lien statutes which compel the owner of realty, who contracts for its improvement, to see that those who furnish the labor and materials are paid.3 The requirement of the performance bond provides a means by which the owner can protect himself as well as the labor and materialmen. But if he fails to comply with the statute, it places upon him the burden of seeing that the labor and materials are paid for. Inasmuch as this statute arose from and has the same purpose as the lien statutes, adjudications as to the application of lien statutes are persuasive.4

The difficulty with the defendant’s position seems to be in the misapprehension that in order for the statute to be applicable the owner-builder must have an interest in the freehold itself, that is the “soil” which underlies the building, as distinguished from the broader concept of the “realty” which is improved. This is not an indispensable requirement. The duty of obtaining a bond as imposed by Sec. 14-2-1 is upon: “The owner of any interest in land” who enters into a contract to construct an improvement thereon. The word “land” as used in the law, has since time immemorial been regarded as a generic term. It “ * * * includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings, fixtures, and fences.” 5 This is par-^ ticularly true with respect to these lien statutes which should be liberally construed to effectuate their purposes. This court has allowed a materialmen’s lien to attach to interests less than fee simple, such as a leasehold estate,6 and equitable interest,7 *47and to a building separate from the soil upon which it was erected.8

It is not questioned that the defendant owns the building in which this installation was made. Considered in the light of what we have said above it is our opinion that the building placed thereon should properly be regarded as part of the realty, and it therefore follows that the defendant of necessity must own some “interest in the land.” The fact that the furnace and equipment in question were shipped by plaintiff as consigned to this job and used in the construction of the defendant’s lumber-curing plant is a sufficient basis upon which to predicate liability for the defendant’s failure to obtain the bond as required by the statutes referred to.

Remanded with instructions to enter judgment in favor of the plaintiff for the value of the materials it furnished. Costs to plaintiff (appellant). (Emphasis added.)

TUCKETT, J., concurs.

. 13 Utah 2d 339, 374 P.2d 254.

. 16 Utah 2d 74, 395 P.2d 914.

. See Metals Manufacturing Co. v. Bank of Commerce, footnote 2 above; as to validity of mechanic’s lien statutes see Rio Grande Lumber Co. v. Darke, 50 Utah 114, 167 P. 241, L.R.A.1918A, 1193.

. See discussion in Crane Co. v. Utah Motor Park, Inc., 8 Utah 2d 413, 335 P. 2d 837.

. See 42 Am.Jur., Property, p. 196; see also 73 C.J.S. Property § 7, p. 162,' et seq.; that “interest in land” includes ownership of a portion of a building placed thereon, see United States v. Certain Property, etc., D.C., 225 F.Supp. 498; and that machinery necessary to the operation of a plant (a smelter) see Smith v. Stroehle Machinery & Supply Co., 109 Colo. 460, 126 P.2d 341.

. Buehner Block Co. v. Glezos, 6 Utah 2d 226, 310 P.2d 517; Metals Manufacturing Co. v. Bank of Commerce, footnote 2 above.

. Cary-Lombard Lumber Co. v. Partridge, 10 Utah 322, 37 P. 572 (1894).

. Sanford v. Kunkel et al., 30 Utah 379, 85 P. 363, 1012 (1906).