Baumhoff v. St. Louis & K. R. Co.

• Decision Date: 24 December 1902
• Parties: BAUMHOFF v. ST. LOUIS & K. R. CO. et al.
• Court: Missouri Supreme Court

71 S.W. 156

171 Mo. 120

BAUMHOFF v. ST. LOUIS & K. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

MECHANICS' LIENS—WAIVER—ACCOUNT—SUFFICIENCY.

1. A party contracting to construct an electric railway did not waive his lien for labor and material by his mere agreement to take bonds, stock, etc., in payment therefor, but only lost it in so far as payment was actually made to him in accordance with the contract.

2. An account filed by a mechanic's lien claimant contained an itemized statement of the work done, materials furnished, and prices charged, aggregating $280,000, which was the lump sum claimant was to receive under his contract, with the further statement that a trust company, "under the terms of the contract, delivered to the claimant $250,000 of its first mortgage bonds, which bonds so delivered the railroad company [the other party to the contract] claims was illegal." Held, that the account was sufficiently itemized, and while its grammatical construction was open to criticism, and a balance was not formally struck, it was perfectly apparent that the amount claimed as due was $30,000.

3. An account filed by a mechanic's lien claimant which claimed as the balance due $30,000 was not objectionable, as not being a just and true account, though the sum claimed could, under the terms of the contract, have been paid with $25,000 worth of stock and $5,000 in cash out of certain moneys raised by subscription.

4. The fact that the money due a mechanic's lien claimant was in the hands of a trust company, and that claimant had a right of action against it therefor, did not preclude claimant from enforcing his lien, where the money was not paid to him by the trust company because the other party instructed it not to pay it.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by George W. Baumhoff against the St. Louis & Kirkwood Railroad Company and others. Judgment against certain of the defendants, and they appeal. Affirmed.

This is an action by plaintiff, George W. Baumhoff, against the St. Louis & Kirkwood Railroad Company, to recover a balance alleged to be due plaintiff under a contract for the construction of an electric railway from the city of St. Louis to Meramec Highlands, in the county of St. Louis, and to enforce a lien therefor under the provisions of article 4, c. 102, Rev. St. 1889 (article 4, c. 47, Rev. St. 1899), to which the Highlands Scenic Railroad Company and the St. Louis Trust Company were made parties defendant. The case was dismissed as to the trust company, and judgment therein rendered against the St. Louis & Kirkwood Railroad Company and the Highlands Scenic Railroad Company as follows (omitting caption): "October 16, 1899. Now on this day this cause came on to be heard on motion of the St. Louis & Kirkwood Railroad Company for judgment by default against the St. Louis Trust Company, and the same, having been considered, is by the court overruled, and the order of the court heretofore made herein, dismissing this cause as to the St. Louis Trust Company, is hereby confirmed. And now on this day this cause came on further to be heard upon the issues joined between the parties, and the parties waived a jury and submitted the cause to the court upon the pleadings and the evidence adduced, and the court, being fully advised, doth find the issues joined between the plaintiff and the defendants the St. Louis & Kirkwood Railroad Company and the Highlands Scenic Railroad Company in favor of the said plaintiff; and the court find that the plaintiff, George W. Baumhoff, entered into a contract with the St. Louis & Kirkwood Railroad Company for the construction of an electric railway from the southwest corner of Forest Park, at the city limits of the city of St. Louis, in a southwestern direction, to Meramec Highlands, all in the county of St. Louis and state of Missouri, and that he was to receive for the work of constructing said road the sum of two hundred and fifty thousand dollars ($250,000) in bonds of the St. Louis & Kirkwood Railroad Company, twenty-five thousand dollars ($25,000) in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company, and five thousand dollars ($5,000) to be paid out of certain subscriptions to the St. Louis & Kirkwood Railroad Company, made to aid it in the construction of its said railway. The court finds that said plaintiff has fully complied with the said contract on his part, and has done and performed the work by him agreed to be done; that he has received the sum of two hundred and fifty thousand dollars ($250,000) in bonds of the St. Louis & Kirkwood Railroad Company, agreed to be paid to him under the said contract; that he is entitled to receive twenty-five thousand dollars ($25,000) in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company, and the further sum of five thousand dollars ($5,000) in cash, with interest on said cash sum from the ____ day of ____, A. D. 189_. The court further finds that the said shares of the capital stock of the St. Louis & Kirkwood Railroad Company are not shown by the evidence submitted to possess any pecuniary value. It is therefore ordered, considered, and adjudged by the court that the plaintiff, George W. Baumhoff, do have and recover of the defendant the St. Louis & Kirkwood Railroad Company the said sum of five thousand eight hundred and ninety-seven dollars and fifty cents ($5,897.50), and also his costs and charges in this behalf expended; and the court finds that the said plaintiff, George W. Baumhoff, is entitled to a mechanic's lien against the property of the St. Louis & Kirkwood Railroad Company described in his amended petition herein, and that the said sum aforesaid be levied out of the property of the said St. Louis & Kirkwood Railroad Company charged with the lien of the plaintiff, and described as follows, to wit: [Here follows description of property.] The court finds the issues joined between the plaintiff and the defendants on the counterclaim of the St. Louis & Kirkwood Railroad Company in favor of the said plaintiff; and the court doth therefore adjudge that the said defendant St. Louis & Kirkwood Railroad Company take nothing by its counterclaim, and that the plaintiff, Baumhoff, recover of the defendant the St. Louis & Kirkwood Railroad Company his costs in that behalf expended. And the court doth find the issues joined between the plaintiff and the defendant the Highlands Scenic Railroad Company on the counterclaim of the said Highlands Scenic Railroad Company in favor of the said plaintiff, and the court doth therefore order and adjudge that the said defendant the Highlands Scenic Railroad Company take nothing by its counterclaim, and that the plaintiff recover of the said defendant his costs in this behalf expended, and that execution issue accordingly." From which judgment the said railroad companies appeal.

A. N. Edwards, Dawson & Garvin, Leonard Wilcox, and G. A. Finkelnburg, for appellants. Jno. H. Overall and Boyle, Priest & Lehmann, for respondent.

BRACE, P. J. (after stating the facts).

There is abundant evidence in the record to support the finding of the trial court, and as this is an action at law, tried by the court sitting as a jury, whose finding upon the issues of fact is as conclusive on appeal as would be the verdict of a jury, it is unnecessary to summarize the evidence or comment upon it; and, as in such cases the actions of the court upon declarations of law are important only as indicating the theory on which the case was tried, it is likewise unnecessary to set out the declarations of law herein, or to consider the objections thereto in detail. Hence we come at once and directly to the material questions of law raised by the record for determination.

1. It is contended for defendants that plaintiff, by the contract under which he constructed the railroad, waived a lien under the statute for the work done and materials furnished in the performance of his part of said contract, in that he thereby agreed to receive in full payment and satisfaction therefor $250,000 in bonds of the St. Louis & Kirkwood Railroad Company, payable 20 years after date, secured by a first mortgage on all the property of the company, real, personal, and mixed, including its franchises, $25,000 of its capital stock, and $5,000 in cash, to be paid out of a fund subscribed by citizens as a bonus for the completion of the road; and in support of this contention Gorman v. Sagner, 22 Mo. 137; Barrows v. Baughman, 9 Mich. 213; Weaver v. Demuth, 40 N. J. Law, 238; Grant v. Strong, 18 Wall. 623, 21 L. Ed. 859; Phil. Mech. Liens, §§ 279, 280; Boisot, Mech. Liens, 717,—are cited. In Gorman v. Sagner, 22 Mo. 137, it was held that "an acceptance, by one having a mechanic's lien upon a building, of a deed of trust upon the same, to secure the payment at a future day of promissory notes given for the debt which gave rise to the lien, amounts to a waiver of the lien." In Grant v. Strong, 18 Wall. 623, 21 L. Ed. 859, it was held that a builder's lien did not attach where a...