Allen Estate Association v. Fred Boeke & Son

• Decision Date: 04 October 1923
• Citation: 254 S.W. 858,300 Mo. 575
• Parties: ALLEN ESTATE ASSOCIATION, Appellant, v. FRED BOEKE & SON et al
• Court: Missouri Supreme Court

254 S.W. 858

300 Mo. 575

ALLEN ESTATE ASSOCIATION, Appellant, v. FRED BOEKE & SON et al

Supreme Court of Missouri, Second Division

October 4, 1923

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

Leahy Saunders & Walther, Virgil Rule and Harding, Murphy, Stinson & Tucker for appellant.

(1) The court erred in holding that the Ottawa Realty Company was the agent of the Allen Estate Association within the meaning of the Mechanic's Lien Law, even as to the alterations and repairs required by the lease, and that the work done by the respondents or any of them was done for the immediate use enjoyment or benefit of the Allen Estate Association so as to make its reversionary interest in the leased property liable to a lien. Secs. 7216, 7220, R. S. 1919; Dierks & Son Lumber Co. v. Morris, 170 Mo.App. 212; Winslow Brothers v. McCully Co., 169 Mo. 236; Jones on Liens, sec. 1277; Albaugh v. Company, 14 App. D. C. 120; Harmon v. Allen, 11 Ga. 45; Langley v. D'Angigne, 31 App. D. C. 409; Valeria v. Ingersoll, 14 Col. App. 240; Conant v. Brackett, 112 Mass. 18; Roth v. Villingsrath, 71 Ala. 55; Gaskell v. Trainor, 3 Cal. 333; McCarthy v. Burnett, 81 Ind. 23; McClintock v. Creswell, 67 Pa. St. 183; Boone v. Chatfield, 118 N.C. 916; McGreary v. Osborne, 9 Cal. 119; Boisot on Mechanic's Liens, sec. 130; 20 Am. & Eng. Ency. Law (2 Ed.) 320; Block v. Murray, 12 Mont. 545; Morrow v. Merritt, 16 Utah 412; Marty v. Amusement Co., 173 Mo.App. 707. (2) The court erred in holding that the Ottawa Realty and Hotel Company was the agent of the Allen Estate Association within the meaning of the Mechanic's Lien Law as to the extras and additions to the alterations and repairs specified by the lease and shown in the original plans and specifications. There is not a word of evidence in the record to sustain such holding, and on the findings of fact of the referee the court should have ruled that as to these extras and additions the Ottawa Realty Company was not the agent of the Allen Estate Association within the meaning of the Mechanic's Lien Law. Ward v. Nolde, 259 Mo. 285; Marty v. Amusement Co., 173 Mo.App. 707; Carroll Contr. Co. v. Newsom, 210 S.W. 114; Powell v. Reibinger, 234 S.W. 850. (3) The items of labor and material required by the lease and the items of labor and material entering into the extra and additional work are so comingled that they cannot be segregated; therefore even though it be assumed that, as to the alterations and repairs required by the lease, the Ottawa Realty Company was the agent of the Allen Estate Association within the meaning of the Mechanic's Lien Law, yet since such lienable items are so co-mingled with non-lienable items that they cannot be segregated, the whole liens of all the respondents must fall. Boiler Works Co. v. Haydock, 59 Mo.App. 660; Edgar v. Salisbury, 17 Mo. 271; Murphy v. Murphy, 222 Mo.App. 18; Dugan Cut Stone Co. v. Gray, 43 Mo.App. 671; Badger Lumber Co. v. Knights of Pythias, 157 Mo. 366; Kirschner v. Kitzpatrick, 3 Mo.App. 575; Nelson v. Withrow, 14 Mo.App. 270; Gauss v. Hussmann, 22 Mo.App. 115; Mackler v. Railroad, 62 Mo.App. 677; O'Connor v. Current River Railroad, 111 Mo. 193. (4) By their agreement to accept notes of the Ottawa Realty Company, secured and guaranteed by the Chicago Bonding & Surety Company, in payment, the general contractor and those sub-contractors who agreed to accept notes waived their lien even though it be assumed that they otherwise had liens. Garman v. Sawyer, 22 Mo. 137; Weaver v. DeNutt, 40 N. J. 283; Barrows v. Baughman, 9 Mich. 213; Phillips on Mechanic's Liens, sec. 279; Grant v. Strong, 18 Wall. 623; McMurray v. Brown, 91 U.S. 257; Baumhoff v. Ry. Co., 171 Mo. 120. (5) Fred Boeke & Son are estopped from claiming or establishing a mechanic's lien against appellant's reversionary interest in this property by reason of the bond which they executed as principal with the New England Casualty Company as surety to the appellant by which they agreed to protect the appellant's property from liens. Handley v. Ward, 70 Mo.App. 146; Fullerton Co. v. Gates, 89 Mo.App. 201; Compton v. Conrad, 203 Mo.App. 217. (6) Even if it be assumed that appellant's reversionary interest could, under the circumstances, be bound by the lien for the alterations and repairs required by the lease, Fred Boeke & Son, in releasing the Chicago Bonding & Surety Company for liability under its bond and on the notes, destroyed their right to a lien at least to the extent of the aggregate of the notes issued to them and the sub-contractors. Secs. 3, 4, 23, 98, 244, 246, 247, 248, 250, 251, Stearns on Suretyship (2 Ed.); 32 Cyc. 22; Taylor v. Jeter, 23 Mo. 244; Wayman v. Jones, 58 Mo.App. 213; Rogers v. Gosnell, 58 Mo. 589; Amonette v. Montague, 75 Mo. 43. (7) By their fraudulent mutilation and falsification of their contracts, Joseph Hirschstein, and A. R. Schulz Wall Paper & Painting Company, destroyed their right to a lien if they otherwise had one, notwithstanding the fact that they sue on quantum meruit. Whitmer v. Frey, 10 Mo. 348; McCormick Harvesting Machine Co. v. Blair, 146 Mo.App. 381; Carson v. Woods, 173 S.W. 623; Champion v. Haskell, 30 Mo. 136. (8) Since they failed to give credit in their mechanic's lien statements for the amount of the notes which they agreed to accept in payment and which they received in payment, Fred Boeke & Son, Joseph Hirschstein, A. R. Schultz Wall Paper & Painting Company, Eclipse Electrical Company, and Mueth Plastering Company, have not filed a just and true account, and for that reason, even though it be assumed that they otherwise had liens, their liens must be denied. Baumhoff v. Ry. Co., 171 Mo. 120; Uthoff v. Gerhard, 42 Mo.App. 256; Daugherty Lumber Co. v. Rauthbone, 152 Mo. 215.

A. E. L. Gardner, John T. Barker, Holland, Rutledge & Lashly, Seneca C. Taylor, Eugene Buder, A. W. Wenger, Rassieur, Kammerer & Rassieur, William S. Campbell, Christy M. Farrar, James E. King, John Brennan, Jr., and H. A. Loevy for respondents.

(1) The Mechanic's Lien Law is highly remedial in its nature and should be liberally construed in favor of the lien. Weis Marble Co. v. Rossi, 198 S.W. 424; Crane Co. v. Hotel Co., 121 Mo.App. 225; DeWitt v. Smith, 63 Mo. 263; Dugan v. Gray, 114 Mo. 497; Sash & Door Wks. v. Slade, 137 Mo.App. 23. (2) Whenever the landlord binds or obligates the tenant to build and construct permanent improvements beneficial to the reversionary interest of the landlord, the person furnishing any part of the materials or work for said improvement under or by virtue of a contract with the said tenant has a right to a mechanic's lien against the reversionary interest of the landlord. R. S. 1909, secs. 8212, 8214, 8216, 8234; R. S. 1919, secs. 7216, 7218, 7220, 7238; Ward v. Nolde, 259 Mo. 285; Winslow Bros. Co. v. McCully Stone Co., 169 Mo. 236; O'Leary v. Roe, 45 Mo.App. 567; Lumber Co. v. Nelson & Haydel, 71 Mo.App. 118; Dougherty Co. v. Churchill, 114 Mo.App. 578; Hardware Co. v. Churchill, 126 Mo.App. 462; Westport Lumber Co. v. Harris, 131 Mo.App. 101; Carey & Lumber Co. v. Jones, 187 Ill. 203; Crandall v. Sorg, 198 Ill. 62; Mistrell v. Baldwin, 129 N.Y.S. 670; National Wall Paper Co. v. Sire, 163 N.Y. 122; Hall v. Parker, 94 Pa. St. 109; Smith v. Norris, 120 Mass. 58; Berket v. Harper, 79 N.Y. 273. (3) The lien is given by law and cannot be considered waived unless the intention to waive is clearly manifested. Peck v. Bidwell, 10 Mo.App. 524; Lee v. Hassett, 39 Mo.App. 71; Lumber Co. v. Hoose, 67 Mo.App. 274; Nice v. Walker, 153 Pa. St. 123; Evans v. Crogan, 153 Pa. St. 121; Baumhoff v. Ry. Co., 171 Mo. 120. (4) The improvements in question were of a substantial benefit to the estate of the lessor. Weis Marble Co. v. Rossi, 198 S.W. 424; Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 469. (5) Neither the taking of notes of the debtor nor that of a third person is payment on account unless such notes are taken with the distinct understanding that they are to be taken in payment, and notes received by the lienor should be surrendered into court at or before the time of trial, and the lien is not waived by the lienor in receiving such notes. Lumber Co. v. Christophel, 59 Mo.App. 85; Peck v. Bidwell, 10 Mo.App. 524; Lumber Co. v. Christophel, 62 Mo App. 100; Western Brass Mfg. Co. v. Boyce, 74 Mo.App. 100; Western Brass Mfg. Co. v. Boyce, 74 Mo.App. 343; Selby v. McCullough, 26 Mo.App. 66; Ashdown v. Wood, 31 Mo. 465; McMurray v. Taylor, 30 Mo. 263; Bank v. Peterman, 21 Mo.App. 512. (6) Fred Boeke & Son are not estopped from claiming and establishing a mechanic's lien against the appellant's reversionary interest in the property in question by reason of the bond which they executed, as principal, with the New England Casualty Company as surety, to the lessee and the appellant as obligees. Ward v. Nolde, 259 Mo. 304; Hartman v. Berry, 56 Mo. 487; Fullerton Lumber Co. v. Gates, 89 Mo.App. 201; Badger Lumber Co. v. Muehlebach, 109 Mo.App. 646. (7) The testimony of witnesses as to the conversation of William Russell Allen was competent in proof of all lien claims to which their testimony referred, except for the purpose of proving their own claim. Clark v. Thias, 173 Mo. 628; Stanton v. Ryan, 41 Mo. 510; Leahy v. Simpson's Adm., 60 Mo.App. 83; Baer v. Pfaff, 44 Mo.App. 35; Wagner v. Binder, 187 S.W. 1128; Rauch v. Metz, 212 S.W. 357; Prindle v. Fidelity Co., 233 S.W. 255; Gammon v. McDowell, 235 S.W. 461; Darby v. Life Ins. Co., 239 S.W. 68; Biggerstaff v. Riley, 192 Mo.App. 92; Gunn v. Thurston, 130 Mo. 339; Signaigo v. Signaigo, 205 S.W. 23.

OPINION

WALKER, J.

This is a suit brought in the Circuit Court of the City of St. Louis by the appellant, the Allen Estate Association, a corporation, under the provisions of Sections 7240, 7244, ...