American Radiator Company v. Conner Plumbing & Heating Company
| Decision Date | 28 March 1919 |
| Citation | 211 S.W. 56,277 Mo. 548 |
| Parties | AMERICAN RADIATOR COMPANY v. CONNER PLUMBING & HEATING COMPANY, JEFFERSON REAL ESTATE & BROKERAGE COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Frank G. Johnson, Judge.
Reversed and remanded.
John F Cell for appellant.
Haff Meservey, German & Michaels for respondents.
OPINION
This was an action to enforce a mechanic's lien brought in the circuit court of Kansas City by the plaintiff, for material furnished to Connor Plumbing and Heating Company, a sub-contractor, and used in the construction of a building on the property of the defendant Jefferson Real Estate & Brokerage Company. Howard J. Vrooman was the original contractor, and defendants Edwin C. Meservey and Milo A. Wilson were trustee and cestui que trust in a deed of trust on the place.
There was a personal judgment in the circuit court in favor of the plaintiff and against Connor Plumbing & Heating Company, sub-contractor; but against plaintiff and in favor of the remaining defendants, denying the lien. The plaintiff appealed to the Kansas City Court of Appeals and that court reversed the judgment as to the lien and the defendants in whose favor the circuit court found and remanded the cause for trial, but certified the case to this court because the opinion is in conflict with a decision by the St. Louis Court of Appeals in Rumsey v. Pieffer, 108 Mo.App. 486, 83 S.W. 1027.
The point on which the Kansas City Court of Appeals differs from the St. Louis Court of Appeals in the case mentioned turns upon the failure of the plaintiff to make the original contractor a party to the proceeding within ninety days [Sec. 8228, R. S. 1909.]
In the original petition filed in the case, Vrooman, the original contractor, was not made a party. The issue was tendered by motion and by the separate answers of the several defendants that Vrooman was not made a party and therefore there was defect of parties defendant. After ninety days from the filing of the lien the plaintiff filed an amended petition making Vrooman a party defendant; he was brought in by summons, and answered setting up as a defense that the action was not begun as to him within ninety days of the filing of the lien.
On the trial, the defendants, excepting the Connor Company, sub-contractor, objected to the introduction of any evidence on the ground that Vrooman was not made a party within ninety days, and the objection was sustained, with the result as stated.
I. A preliminary question is first presented for consideration. The filing of the original petition is not shown in the abstract of the record proper. The amended petition, on which the suit was tried, was filed July 10, 1914; the mechanic's lien was filed November 14, 1913. Respondent claims that because the abstract of the record proper does not show the suit was commenced within ninety days from the time of filing the lien, as required by Section 8228, Revised Statutes 1909, plaintiff's case must fail.
Appellant, however, calls attention to an admission shown in the bill of exceptions made by the respondents at the trial. Defendants' objection to the introduction of any evidence was thus stated:
"Because the mechanic's lien in this case was filed on the 14th day of November, 1913, and although this suit was filed on the 22nd day of November, 1913, the defendant Howard J. Vrooman was not brought into the case or attempted to be made a party defendant until July 10, 1914, when the amended petition was filed."
Respondents, however, correctly say that the filing of the suit must be shown by the record proper and a recital in the bill of exceptions will not supply the place of that showing. [Mahaffey v. Cemetery Assn., 253 Mo. 135, 139, 161 S.W. 701.]
In this case there appears to be no need of such a showing. The statute, Section 8228, which requires suit to enforce a lien to be commenced within ninety days after filing the lien, is a Statute of Limitations and must be pleaded in order to avail the defendant. [Bloom, Mechanics' Liens, sec. 649; Towle v. Sweeney, 83 P. 74; Johnston v. Ragan, 265 Mo. 420, 178 S.W. 159.] If the defect does not appear upon the face of the petition it must be pleaded in the answer; if shown on the face of the petition the question may be raised by demurrer. [Burrus v. Cook, 215 Mo. 496, 114 S.W. 1065; Garth v. Motter, 248 Mo. 477, 482, 154 S.W. 733.]
The amended petition does not show on its face when the action was begun, and there was no allegation in the answer of any failure to bring the suit within ninety days from the filing of the lien. The defendants, on the other hand, tried the case on the theory that the suit was filed in time as to all the defendants excepting Vrooman; each defendant distinctly pleads as a defense that the suit was not begun within ninety days as to Vrooman. The statement in the bill of exceptions that the suit was filed on the 22nd day of November, 1913, is not a mere recital but the solemn admission of counsel made in the conduct of the case showing the theory on which the case was tried in the court below. Respondent will not be heard to present the case on a different theory here.
II. It is argued that the original contractor is a necessary party to the action and the suit must fail because the action was not commenced against all necessary parties within the ninety days as provided by Section 8228. The appellant is supported in this by the St. Louis Court of Appeals, as stated above, in the case of Rumsey v. Pieffer, 108 Mo.App. 486, 83 S.W. 1027. In that case the material sued for was furnished to a sub-contractor; the original contractor was not made a party to the suit. The trial court sustained a motion to dismiss the suit as to the owners for that reason, and the judgment was affirmed. This on the theory that Section 8233 made the original contractor a necessary party, in addition to the necessary parties named in Section 8221.
The Court of Appeals in that case cites two cases in support of the position taken: Johnson-Frazier Lumber Co. v. Schuler & Muench, 49 Mo.App. 90, and Horstkotte v. Menier, 50 Mo. 158. In the Schuler case, however, the original contractor was the party to whom the material was furnished, and of course was a necessary party under Section 8221, Revised Statutes 1909. The Horstkotte case, as we read it, is directly opposed to the position taken. There the original contractor was not made a party defendant. The plaintiff furnished material to a sub-contractor, sued, and his lien was sustained. The court in that case construed the sections of the statute applicable, Sections 8221 to 8233, Revised Statutes 1909. Section 8221 is as follows: "In all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings."
The expression, "parties to the contract," has been construed several times to be the parties to the particular contract which is the subject of inquiry. [McLundie & Co. v. Mount, 145 Mo.App. 660, 667, 123 S.W. 966; Downey v. Higgs, 41 Mo.App. 215.] In this case it would be the contract by which the materials were furnished by plaintiff to the sub-contractor. Section 8233 provides that when a lien is filed by any person other than the contractor it shall be the duty of the contractor to defend the action at his own expense; that the owner, during the pendency of the action, may withhold from the contractor the amount for which the lien is filed, and in case of judgment against the owner or his property he shall be entitled to deduct the amount from what he owes the contractor.
As Section 8221 reads it is unambiguous and states with precision who are...
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