Berkshire Lumber Co. v. J. S. Chick Investment Co.
| Decision Date | 07 April 1913 |
| Parties | BERKSHIRE LUMBER CO., Respondent, v. J. S. CHICK INVESTMENT COMPANY, a Corporation, AND F. S. COLVIN, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Sebree Conrad & Wendorff for appellants.
(1) The variance between the mechanic's lien and the petition and the judgment is fatal to recovery by respondent. 13 Ency. of Plead. & Prac., p. 1004; Dugan v. Higgs, 43 Mo.App 166; Henry v. Mahone, 23 Mo.App. 83; Guass v Hussman, 22 Mo.App. 115; Poppert v. Wright, 52 Mo.App. 576; Palmer v. Lavigne, 104 Cal. 30; Frazer v. Barlow, 63 Cal. 71; McAdow v Miltenberger, 75 Mo.App. 346; Davis v. Bond, 75 Mo.App. 35; Cousins v. Bowling, 100 Mo.App. l. c. 458; Shinn v. Rld, 146 Mo.App. 725; Ramsey v. Henderson, 91 Mo. 565. (2) If the theory upon which the mechanic's lien was filed and the judgment as amended rendered, is to be relied upon, then the petition is fatally defective in not alleging ten days' notice of intention to file mechanic's lien. Heltzell v. Haynes, 35 Mo. 482; Gault v. Soldani, 34 Mo. 150; Baker v. Smallwood, 161 Mo.App. 257. (3) The court was not authorized in sustaining a lien against the interest of appellants in the property, for the reason that no interest was shown by respondent. Keller & Co. v. Assn., 71 Mo.App. 465. (4) The motion of appellants to require respondent to elect should have been sustained. Sessions v. Block, 40 Mo.App. 569; Rider v. Kirk, 82 Mo.App. 120; Thompson v. Irwin, 76 Mo.App. 418; Southworth Co. v. Lamb, 82 Mo. 242; Behen v. Transit Co., 186 Mo. 438. (5) The motion in arrest should have been sustained for, (a) the petition sued to enforce a joint liability which was severed in the judgment. McAdow v. Miltenberger, 75 Mo.App. 346; Davis v. Bond, 75 Mo. 35; Cousins v. Bowling, 100 Mo.App. 458; Shinn v. Railroad, 146 Mo.App. 725; Ramsey v. Henderson, 91 Mo. 565. (b) The judgment was for a greater amount than was asked for in the petition. Shockley v. Fischer, 21 Mo.App. 557; Ashby v. Shaw, 82 Mo. 81; Farrell v. Ins. Co., 66 Mo. 153. (6) The mechanic's lien should have been excluded from the evidence for the further reasons: (a) It contained no itemized account of the material furnished by claimant. Emmert v. Meyer, 65 Mo.App. 612; Bowling v. McFarland, 38 Mo. 465; Pomeroy v. Fullerton, 113 Mo. 453; Merrill v. Trust Co., 46 Mo. 242; Brick Works v. Flanigan Bros., 87 Mo.App. 347. (b) There was no evidence as a basis for the lien when it was introduced in evidence. (7) Defendant Quimby was not a contractor for defendant Balfour. (8) There was no evidence that the material sued for was furnished or used on the property within the lien period. Darling v. Eldridge, 88 Mo.App. 525; Baker v. Smallwood, 161 Mo.App. 257.
Ellis, Cook & Barnett for respondent.
(1) There was no fatal variance between the mechanic's lien and the petition. Lumber Co. v. Churchill, 114 Mo.App. 578; Sash & Door Co. v. Shade, 137 Mo.App. 20; Madden v. Realty Co., 75 Mo.App. 358, 363; Macklin v. Railroad, 52 Mo.App. 516; Van Riper & Rodgers v. Morton, 61 Mo.App. 440; Lumber Co. v. Greffet, 154 Mo.App. 33; Winslow v. McCully. 169 Mo. 236; Putnam & Stevens v. Rose, 55 Mo. 116. (2) The petition does allege ten days' notice of intention to file machanic's lien, and even if it did not the proof on that point is conclusive, and this court would not set aside the judgment on that ground, since it was not prejudicial error. Sec. 2082, R. S. 1909; McDermott v. Claas, 104 Mo. 14; Freeland v. Williamson, 220 Mo. 217; Stumpe v. Kopp, 201 Mo. 412; Mann v. Doerr, 222 Mo. 15. (3) The court committed no error in sustaining a lien against the interests of appellants in the property, though respondant's petition did not set out the same. (a) Appellants by their general denial in effect disclaimed any interest in the property. Murphy v. De France, 23 Mo.App. 337; Musser v. Adler, 86 Mo. 445; Hudson v. Railroad, 101 Mo. 13; Mize v. Glenn, 38 Mo.App. 98; Guinotte v. Ridge, 46 Mo.App. 254; Northup v. Ins. Co., 47 Mo. 435; Brubaker v. Electric Light Co., 130 Mo.App. 439; Levels v. Railroad, 196 Mo. 606; Huber Mfg. Co v. Hunter, 87 Mo.App. 50; Bolton v. Railroad, 172 Mo. 96; Mussman v. Jeller, 108 Mo.App. 348. (b) Respondent was under no obligation to set out the interest of appellants. Russell v. Grant, 122 Mo. 161; Nold v. Ozenberger, 152 Mo.App. 439; Brass Mfg. Co. v. Boyce, 74 Mo.App. 343; Hicks v. Scofield, 121 Mo. 381; Engineering Co. v. Baker, 134 Mo.App. 95; McLaren v. Real Estate Co., 126 Mo.App. 254; Badger Lumber Co. v. Valentine, 54 Mo.App. 172; Boisot on Mechanics' Liens, sec. 559, also 532. (4) The Mechanic's Lien Law is a remedial measure entitled to liberal construction. Brick Works v. Flanagan Bros., 87 Mo.App. 340; Madden v. Realty Co., 75 Mo.App. 358; Steinman v. Stripple, 29 Mo.App. 478; Darlington v. Eldridge, 88 Mo.App. 525; Sash & Door Co. v. Shade, 137 Mo.App. 20; Independence S.D. & Lbr. Co. v. Bradfield, 153 Mo.App. 527; Hicks v. Scofield, 121 Mo. 381.
--Suit by respondent to enforce a mechanic's lien.
Between October 18, and November 12, 1909, respondent sold to the defendant, E. H. Quimby, $ 689.62 worth of lumber which went into the construction of a residence on the lot against which the lien is sought to be enforced. During this time and afterwards the record title to said lot stood in the name of a Miss F. E. Balfour. It was discovered later (though the evidence does not show just when, but after the filing of the lien-claim), that Quimby was the equitable owner of the property, and that the title was placed in Balfour to secure her for that part of the money advanced by her to assist in paying for same.
The account not being paid, respondent, on January 27, 1909, served written notice on both Balfour and Quimby that it claimed a lien for the above amount for the lumber and materials furnished by respondent and used in the house on the lot between the above named dates, and that a lien would be filed at the expiration of ten days unless said account was paid.
On February 7, 1910, within four months from the first date of the account, and more than ten days after service of notice, respondent filed a lien-claim in the clerk's office in which it was stated that F. E. Balfour was the owner, that the contract for the sale and delivery of the lumber was made with Quimby and that he was authorized by Balfour to erect the improvement in question. It is unnecessary to say anything about the other parts of said lien-claim at this time, since they were in the usual and regular form except in one particular which will be noticed later on.
The petition to enforce the lien was filed March 24, 1910. It was therein alleged that F. E. Balfour was from the 15th day of April, 1909, and still is, the holder of the legal and record title to said lot but that plaintiff is informed and believes, and so states the fact to be, that Quimby has at all times been the equitable and real owner; that the contract for the sale of the lumber was made with Quimby who was at the time duly authorized and empowered to act both in his own right, in so far as he was the actual owner of said property, and also to act for Balfour; and that thereafter between the above named dates respondent sold and delivered under said contract and at the instance of said defendants, Quimby and Balfour, the lumber sued for and used in the buildings, etc., etc.
A jury was waived and a trial had. The court, in its judgment, found that the contract for the lumber was made with Quimby, that Balfour was and still is the holder of the legal and record title to said lot, that the same was purchased with funds paid in part by Quimby and in part by Balfour, and that Quimby has at all times been the owner of an equitable interest in said property along with Balfour and that Quimby is, and at the time in controversy was, authorized to act not only in his own right but also in behalf of Balfour in the erection of the improvement, and then rendered a personal judgment against Quimby and Balfour for the amount sued for, to-wit, $ 689.62 with six per cent interest thereon from March 24, 1910, the date of filing suit, aggregating $ 729.27, and then enforced this judgment as a lien on the property superior to the interests of all the defendants. But this judgment was afterwards modified by the court so as to make it a personal judgment against Quimby only, but leaving it in all other respects the same as before.
Neither Quimby nor Balfour took an appeal, but the J. S. Chick Investment Company, a corporation, and F. E. Colvin did. They were made parties to the suit by an allegation in the petition that they claimed some interest in the property but that any interest they might claim or set up to the property, and particularly to the dwelling house, was inferior to plaintiff's lien.
The first point insisted on by appellants is that there is a fatal variance between the lien-claim and the petition for the enforcement of the lien. This is on the theory that the lien-claim stated a contract made with Quimby alone, while the petition is based on a contract made jointly with Qnimby and Balfour. In this we think appellants misconceive the legal effect of the petition when considered as a whole. It alleges that the contract was made with Quimby, that the legal title to the lot stood in Balfour but that Quimby was the real owner. Now in order to make Balfour jointly liable with Quimby to a personal judgment for the lumber bought, the petition must allege clearly, and the evidence must show, that in reality both contracted for the materials. That is, not only that Quimby contracted for them for himself and Balfour, but that Balfour authorized Quimby in such...
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