Advance Concrete & Asphalt Co. v. Ingels

• Decision Date: 29 August 1977
• Docket Number: No. KCD,KCD
• Citation: 556 S.W.2d 955
• Parties: ADVANCE CONCRETE AND ASPHALT CO. and Turnpaco, Inc., Appellants, v. Sam INGELS, Harold Ingels, Ida K. Ingels and Beverly Ingels, and First Federal Savings and Loan Association of St. Joseph, Respondents. 28532.
• Court: Missouri Court of Appeals

Page 955

556 S.W.2d 955

ADVANCE CONCRETE AND ASPHALT CO. and Turnpaco, Inc., Appellants, v. Sam INGELS, Harold Ingels, Ida K. Ingels and Beverly Ingels, and First Federal Savings and Loan Association of

St. Joseph, Respondents.

No. KCD 28532.

Missouri Court of Appeals, Kansas City District.

Aug. 29, 1977.

As Modified On Courts' Own Motion Oct. 11, 1977.

Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.

David M. Rhodus, Morris, Larson, King, Stamper & Bold, Kansas City, for appellants.

Wm. Rex Bevers, Maryville, for respondents Sam and Harold Ingels.

William H. Strop, St. Joseph, for respondent First Federal Savings.

Before SOMERVILLE, P. J., and WASSERSTROM and TURNAGE, JJ.

WASSERSTROM, Judge.

This is a joint suit by Turnpaco, Inc. and Advance Concrete and Asphalt Co. for money damages and the establishment of a mechanics' lien. The trial court entered summary judgment for defendant First Federal Savings and Loan Association of St. Joseph and partial summary judgment for defendants Sam Ingels and Harold Ingels. Pursuant to a provision of those orders making them final for purposes of appeal, Turnpaco and Advance pursue this appeal. They urge as their single point that there exists an unresolved issue of material fact which prohibited the summary judgments rendered. We reverse.

This litigation arises from a contract signed by Sam Ingels and Turnpaco under which the latter was to furnish labor and material for a mobile home park, Thunderbird Mobile Home Estates. Turnpaco then subcontracted for the concrete work to be done by Advance. Claiming that $58,614.54 remained unpaid on the amount due it, Turnpaco filed its claim for mechanics' lien on May 17, 1974; and Advance claiming $89,226.55 filed its claim on May 22, 1974. Prior thereto, Advance had given notice of its claim which it delivered to Harold Ingels on May 10, 1974. A joint petition was filed in the Circuit Court by Turnpaco and Advance on November 15, 1974, against Harold and Sam Ingels, alleging those two to be the owners of the property and the ones who had contracted for the labor and material. First Federal Savings and Loan was joined as a defendant for the purpose of the plaintiffs' establishing priority of their mechanics' lien against the First Federal deed of trust.

On June 23, 1975, First Federal moved for summary judgment against both plaintiffs, and two days later Sam and Harold joined in those motions. The grounds set forth as the basis for summary judgment were that Sam's wife, Ida, and Harold's wife, Beverly, were co-owners of the property but had not been notified of the claims for mechanics' liens, had not been served with a statement of the claimed mechanics' liens, and had not been made parties defendants in this lawsuit. The movants attached to their motions copies of warranty deeds demonstrating the participation in title ownership by those two wives.

In response to those motions, on July 17, 1975, plaintiffs moved for leave to file an amended joint petition and concurrently they did file the proposed amended petition. The major change was to add Ida and Beverly as parties defendants and to add an allegation that "Defendants and each of them were partners, joint adventurers, and mutual agents with respect to one another for all purposes and all dealings with the aforedescribed real estate including the construction of improvements thereon and the operation of the Thunderbird Mobile Home Estates."

On October 2, 1975, the court held a hearing on the motions for summary judgment and the motion for leave to file an amended petition. At the conclusion of the hearing, those motions were all taken under advisement. While the motions were so pending, defendants on November 20, 1975, filed a motion for leave to refile their motions for summary judgment. The reason given for this new motion was so that "all motions may be adjudicated upon their merits and Court render order thereon."

On December 5, 1975, the court entered its order sustaining the motion for summary judgment by First Federal in full as to both plaintiffs and sustaining the motions of Sam and Harold against both plaintiffs with respect to the claim for mechanics' lien. (The order expressly excluded any ruling with respect to Turnpaco's claims for damages for alleged breach of contract.) The order stated as the basis for the summary judgment that the plaintiffs had "failed to comply with the Statutory procedure for impressing a mechanics' lien on the real estate subject to this litigation" and that in that respect there was no genuine The court order of December 5, 1975, does not state in what respect the court believed that the plaintiffs had "failed to comply with the Statutory procedure." Defendants in their brief, however, offer the following two explanations: 1) that the plaintiffs had failed to include the wives as parties Defendant within the required statutory six month period; and 2) that evidence of record showed by unassailable proof that Sam and Harold were not agents on behalf of Ida and Beverly, so that there was no proper service of notice upon the latter two co-owners. These explanations will be discussed in reverse order.

issue as to any material fact. As part of the order, the court further noted that "although properly included as parties Defendant to this litigation at the time of this disposition of these various motions for summary judgment, Beverly Ingels and Ida Kathleen Ingels have not entered their appearance on this record nor has service on them been requested on this record."

I. AGENCY

If Harold had no agency authority on behalf of Ida or Beverly, then the notice of claim for mechanics' lien served upon Harold in May, 1974, was ineffective to meet the statutory notice requirement of Sec. 429.100. ¹ Even more fundamental, neither Harold nor Harold and Sam together had power to subject the land to a mechanics' lien in the absence of agency to act on behalf of the wives. Kaufmann v. Krahling, 519 S.W.2d 29 (Mo.App.1975); Bryant v. Bryant Construction Company, 425 S.W.2d 236 (Mo.App.1968); Poore v. International Paper Company, 455 S.W.2d 13 (Mo.App.1970).

Defendants argue that the evidence of record shows affirmatively and unassailably, as required for summary judgment under Rule 74.04(h), that there was no such agency. They rely for such proof upon the answers to interrogatories signed by Harold and filed of record on April 1, 1975, and on testimony given by Sam in his deposition which was filed October 21, 1975. So far as the answers to interrogatories are concerned, those answers do evidence that the wives were not partners in Thunderbird Mobile Home Estates. It can further be assumed (although this is far from certain) that those answers were sufficient to show that the husbands had no authority to bind the wives to any personal obligation on business contracts pertaining to the operation of the enterprise. However, nothing in those answers negatived the possibility of another limited type of agency, that is an agency for the special purpose of subjecting the wives' real estate interest to a mechanics' lien incident to the improvement thereof. The distinction between these two different types of agency has been sharply drawn in Bryant v. Bryant Construction Company, supra. Since the answers to interrogatories do not unassailably disprove agency for the purpose of subjecting the property to mechanics' lien, those answers are insufficient to support the...