Aimee Realty Co. v. Haller

Decision Date17 December 1907
Citation128 Mo. App. 66,106 S.W. 588
PartiesAIMEE REALTY CO. v. HALLER et al.
CourtMissouri Court of Appeals

Defendants contracted to do the painting and glazing on 25 dwelling houses, erected by complainant, for the sum of $4,900. Complainant advanced to defendants during the work $4,200, and refused to pay the balance, because of defendants' failure to comply with the contract, and because of defective performance of the work, alleging damages in the sum of $2,000. Held that, since defendants were entitled to institute separate actions before a justice of the peace to recover the amount due on each of said buildings in which complainant's counterclaim might not be available, and it appearing that defendants were insolvent, complainant did not have an adequate remedy at law, and was entitled to an injunction restraining defendants from instituting separate suits in support of such mechanics' liens for the balance due on each of the houses.

4. SAME — MULTIPLICITY OF SUITS — CONSOLIDATION OF ACTIONS.

The rule that an injunction will be granted restraining prosecution of several actions at law arising out of the same controversy does not apply where the actions may be consolidated.

5. JUSTICES OF THE PEACE — ACTIONS — CONSOLIDATION.

Under Rev. St. 1899, § 3953 [Ann. St. 1906, p. 2117], providing that, whenever several suits shall be pending before a justice by the same plaintiff against same defendant for causes of action which may be joined, or whenever several suits shall be pending before the same justice against several defendants for the same causes of actions, the justice may order them consolidated, if the questions arising are substantially the same, or the defenses will be substantially the same in both cases, actions which might be instituted at different times and before different justices could not be consolidated.

6. INJUNCTION — ACTIONS AT LAW — MULTIPLICITY OF SUITS.

Where defendants agreed under a single contract to paint and glaze 25 dwelling houses on separate lots for a specified price, and complainant claimed a counterclaim of $2,000, because of unsatisfactory work and materials, complainant was entitled to an injunction to restrain defendants from instituting separate suits in support of a mechanics' lien for the balance unpaid under the contract on each of the houses, in order to prevent a multiplicity of suits, without a trial of at least one of the actions, at law.

7. MECHANICS' LIENS — INJUNCTION.

When defendants had a statutory right to file separate mechanics' liens for the balance due for labor and materials in painting and glazing several houses under a single contract, complainant was not entitled to an injunction to restrain the filing of such liens, though it claimed that defendants were not entitled to any lien because they had been overpaid.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Suit by the Aimee Realty Company against Lewis Haller and others, to restrain defendants from filing several mechanics' liens, and from prosecuting separate suits in support thereof. From a decree for defendants, plaintiff appeals. Reversed and remanded.

A demurrer was sustained to appellant's petition, which is in the nature of a bill in equity, to enjoin the respondents from filing divers mechanics' liens on appellant's property, and instituting suits to enforce them. Appellant stood on the petition, and final judgment having been entered against it, prosecuted this appeal. According to the statements of the petition the respondents are partners under the firm name of Haller Bros., and engaged in the business of painting and glazing in the city of St. Louis. Appellant is the owner of 23 lots in city blocks Nos. 2097 and 2098, on Tower Grove Heights addition to the city of St. Louis. It was at the time of the filing of the petition, and had been for some months previously, engaged in the erection of 25 dwelling houses on said lots, and, in the course of the work, had entered into a written contract with respondents whereby the latter undertook, for a consideration, to paint and glaze said dwelling houses. The petition then states various specifications about how the work of painting and glazing was, according to the terms of the contract, to be finished, and alleges a failure on the part of respondents to comply with their contract in particulars mentioned, and that in consequence of said breaches by respondents appellant was damaged in the sum of $2,000. The petition further states that the consideration appellant was to pay for painting and glazing said 25 houses was $4,900, or at the rate of $196 a house; that during the progress of the work appellant paid respondents on said contract various sums, aggregating $4,200; that these payments were made at respondents' request, and for their accommodation, though by the terms of the contract appellant was not compelled to make any payment until all the work on the houses was completed by respondents; and, further, that at the time the several payments were made appellant was unaware of the failure of respondents to comply with the specifications of their contract. This failure consisted in not putting on the agreed number of coats of paint, failing to paint the iron work on the buildings, using inferior materials, and doing the work generally in such a defective, unskillful, and unworkmanlike manner as to cause the paint to scale. It was further averred that the work on the houses, except the painting and glazing which respondents were to do, was finished, and appellant had entered into contracts for the sale of several of the houses, and had guaranteed the purchasers against any liens or claims by respondents or others. It is further alleged that respondents have so completely failed to carry out the terms of their contract that appellant has been greatly damaged, and will be compelled to pay a large amount of money in order to put the dwellings in the condition they would have been in if respondents had complied with their contract; that appellant has sustained much greater damage by respondents' breach than would offset any balance whatever due, or that yet may be due, to respondents from appellant; that the claim of respondents on account of the balance that will be due when they shall have completed all the work under the contract is $1,000, and the damage sustained by appellant on account of respondents' breaches is about $2,000; that appellant is not indebted to respondents in any sum whatever; that it has paid them more than they are entitled to, and when the set-off and counterclaim, based on respondents' breaches, is considered, they will be found to be indebted to it more than $800 on account of money heretofore paid them; that respondents threaten to harass and annoy appellant and the purchasers of the houses and tenants of appellant by filing mechanics' liens on account of painting and glazing and for extra work alleged to have been done, respondents claiming that all but two houses have been completed, and that they (respondents) have completed all the work required of them under the contract; that respondents insist on the payment of their demands before they will finish the contract, and threaten to serve notice on appellant's tenants and the purchasers of said houses of the intention to file mechanics' liens thereon, and to create the impression that the titles to the houses are defective and uncertain, and to frighten away other prospective purchasers, and to involve appellant in a multiplicity of suits and costs to defend such actions. It is further averred that the contract between appellant and respondents to paint the houses is single, complete, and indivisible, and by its terms respondents must complete the work before filing any liens or bringing any suits against appellant; that respondents have already filed one lien suit against the property, and threaten to file others; that in doing so they are moved by a desire and purpose to harass and annoy appellant by vexatious litigation, and to cast a cloud on the title of appellant's...

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  • Lee & Boutell Co. v. Brockett Cement Co.
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    • June 21, 1937
    ...Walden v. Robertson, 120 Mo. 38, 25 S.W. 349; Kick v. Doerste, 45 Mo. App. 134; Bickell v. Roeder, 81 Mo. App. 652; Aimee Co. v. Haller, 128 Mo. App. 72, 106 S.W. 588; Sec. 3156, R.S. 1929. (e) Such a "blanket lien" is not indivisible, but is a lien against each building, or part, or all of......
  • Jegglin v. Orr
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    ... ... such a course. In the case of Aimee Realty Co. v ... Haller, 128 Mo.App. 66, 106 S.W. 588, a painter had a ... contract with the ... ...
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    ... ... Doerste, 45 ... Mo.App. 135; Wilson R. & R. L. Co. v. Ware, 150 ... Mo.App. 61; Aimee Realty Co. v. Haller, 128 Mo.App ... 66. (2) The account filed by plaintiff with its ... ...
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    ...are appropriate, chancery will entertain a cause simply to prevent the annoyance and expense of repeated legal actions." Aimee Realty Co. v. Haller, 128 Mo. App. 66, loc. cit. 74, 106 S. W. 588, Nor is it necessary in this state for a complainant to first establish the merits of his content......
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