Baumhoff v. St. Louis & Kirkwood Railroad Co.

• Decision Date: 24 December 1902
• Parties: BAUMHOFF v. ST. LOUIS AND KIRKWOOD RAILROAD COMPANY et al., Appellants
• Court: Missouri Supreme Court

71 S.W. 156

171 Mo. 120

BAUMHOFF v. ST. LOUIS AND KIRKWOOD RAILROAD COMPANY et al., Appellants

Supreme Court of Missouri, First Division

December 24, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

A. N Edwards, Dawson & Garvin and Leonard Wilcox for appellants G. A. Finkelnburg of counsel.

(1) The petition states no cause of action. It states no facts showing any failure on the part of defendant to perform the contract on its part; nor any facts showing that the notice alleged to have been given to the trust company by defendant prevented plaintiff from receiving from the trust company either the shares of stock or $ 5,000 of the proceeds collected from the bonus subscriptions, particularly the latter. It was, therefore, error to render judgment for plaintiff. Railroad v. Atkinson, 17 Mo.App. 492; School Dist. v. Sheidley, 138 Mo. 688; Sand & Gravel Co. v. Construction Co., 138 Mo. 445. (2) Plaintiff was not entitled to a judgment for a lien. (a) The contract itself and the evidence show that the right, if any to a lien was waived. Phillips, Mech. Liens, secs. 279, 280; Gorman v. Sawyer, 22 Mo. 137; Boisot on Liens, sec. 717; Weaver v. Denut, 40 N. J. 238; Barrows v. Boughman, 9 Mich. 213. (b) Plaintiff did not perform his contract, and this is an action on the contract. (c) If the right to a lien was not waived, yet it was lost: first, by filing a claim for an excessive amount; second, by filing an account which was not "a just and true account of the amount due after all just credits have been given," and which showed that plaintiff claimed a cash sum when, in fact, he had agreed to take specific property; third, by filing an account which was not properly itemized. Kling v. Railroad, 7 Mo.App. 410; Hoffman v. Walton, 36 Mo. 613; R. S. 1889, sec. 6743. (d) No breach of contract on part of the Kirkwood company was alleged. (3) This was an action on the contract and not on quantum meruit, and plaintiff failed to perform his contract and therefore can not recover. Eyerman v. Cemetery, 61 Mo. 489; Yeats v. Ballentine, 65 Mo.App. 30; Austin v. Keating, 21 Mo.App. 30. (4) Defendants' motions for new trial should have been sustained. (5) The statute did not give the right to a lien on the power-house. R. S. 1889, secs. 6741, 6742; Bethune v. Railroad, 149 Mo. 604.

John H. Overall and Boyle, Priest & Lehmann for respondent.

(1) Taking the bonds of the company in part payment for work was not a waiver of the right to a mechanic's lien for the balance. Bristol Co. v. Bristol Co., 42 S.W. 19; Jones on Liens, sec. 1524. (2) As the mechanic's lien filed stated the facts with respect to the bonds, namely, that they had been delivered, but the delivery was claimed to be illegal, the claim in the lien was not excessive. (3) The railroad company can not complain of the failure to complete the road within the time specified in the contract, because the delay was due to its own fault. (4) The overwhelming weight of testimony is that the contract had been fully performed and the work thereunder done in entire accordance with the plans and specifications. (5) The refusal by the trust company to deliver the stock and pay the $ 5,000 cash due to the plaintiff, having been brought about by the acts of the defendants in notifying the trust company not to make such delivery and such payment, plaintiff had the right to proceed against the defendants, and by way of enforcement of his right to a lien. (6) There was no merit in the counterclaim of the Highlands Scenic Railroad Company, and that was properly dismissed.

OPINION

BRACE, P. J.

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 provision of article 4, chapter 102, Revised Statutes 1889, article 4, chapter 47, Revised Statutes 1899, to which the Highlands Scenic Railroad Company and the St. Louis Trust Company were made parties defendants. The case was dismissed as to the trust company, and judgment therein rendered against the St. Louis and 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 finds 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 the 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 in bonds of the St. Louis & Kirkwood Railroad Company, twenty-five thousand dollars in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company, and five thousand dollars 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 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 in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company, and the further sum of five thousand dollars 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, 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.

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 action of the court upon declarations of law is 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 and Kirkwood Railroad Company, payable twenty 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,...