Better Roofing Materials Co. v. Sztukouski

• Decision Date: 14 November 1944
• Docket Number: No. 26662.,26662.
• Parties: BETTER ROOFING MATERIALS CO. v. SZTUKOUSKI et al.
• Court: Missouri Court of Appeals

183 S.W.2d 400

BETTER ROOFING MATERIALS CO. v. SZTUKOUSKI et al.

No. 26662.

St. Louis Court of Appeals. Missouri.

November 14, 1944.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Better Roofing Materials Company against C. R. Roberts and Marie Sztukouski to recover a judgment against first-named defendant and to establish a mechanic's lien against the property of second-named defendant. From a judgment on a verdict for second-named defendant, plaintiff appeals.

Reversed and remanded.

Albert E. Hausman, of St. Louis, for appellant.

John T. Sluggett, of St. Louis, for respondent.

McCULLEN, Judge.

This action was brought by Better Roofing Materials Company, a corporation, as plaintiff, to recover a judgment against defendant C. R. Roberts and to establish a mechanic's lien against property owned by defendant Marie Sztukouski. The original petition alleged that defendant C. R. Roberts, as contractor, entered into a contract with defendants Stanley Sztukouski and Marie Sztukouski, his wife, for the erection of an addition to and improvement of a brick building located upon real estate described in said petition. Prior to the trial plaintiff filed an amended petition in which it was alleged that Marie Sztukouski alone, as owner of said property, entered into such a contract with C. R. Roberts, the contractor. The amended petition further alleged that plaintiff furnished and supplied to said C. R. Roberts roofing and building materials which were actually used in making said improvements on the property described, which materials were reasonably worth the sum of $254.52; that although demand for payment had been made, the whole amount thereof remained unpaid. It was further alleged in the amended petition that the steps necessary to perfect a mechanic's lien for supplying said materials were all taken in the time required by law.

The defendant C. R. Roberts did not file any pleading, nor was any pleading filed by or on behalf of Stanley Sztukouski. However, Roberts appeared in court and testified as a witness for plaintiff. The defendant Marie Sztukouski filed a general denial. A trial before the court and a jury, on plaintiff's amended petition and Marie Sztukouski's general denial, resulted in a verdict and judgment in favor of plaintiff and against defendant C. R. Roberts in the sum of $254.52, with interest at the rate of six per cent per annum from January 31, 1943 to October 19, 1943, amounting to $10.93, making a total sum of $265.45. The jury further found "that the plaintiff has failed to establish and perfect his mechanic's lien against the property described in the petition." After an unavailing motion for a new trial plaintiff duly appealed.

It is admitted that Stanley Sztukouski, the husband of Marie Sztukouski, had been dead about five months at the time the contract with C. R. Roberts was entered into on September 5, 1940, and when the materials were supplied by plaintiff. Furthermore, it is conceded that said contract was signed by defendant Marie Sztukouski and her son Stanley Sztukouski, and that Marie Sztukouski was the sole owner of the property, by survivorship, at the time the contract was signed by her and her son — she and her husband having owned the property as an estate by the entirety prior to the husband's death on April 5, 1940.

The points raised by plaintiff on this appeal all relate to matters which arose during the course of the trial. We will discuss them later.

Defendant Marie Sztukouski contends that the verdict was manifestly proper and that a different result could not be allowed to stand because there was no evidence to support the allegation in the amended petition that there was a contract between her alone and defendant C. R. Roberts.

In support of her contentions said defendant argues that the "joint" contract, dated September 5, 1940, which is referred to in the abstract as defendant's Exhibit 1, and which was executed by The Apex Co. by C. R. Roberts as contractor as one party, and Stanley Sztukouski and Mary Ann Sztukouski as the other parties, is an entirely different contract from the one alleged in the amended petition, on which the case was tried, in that the amended petition alleges that Marie Sztukouski alone entered into a contract with Roberts. Said defendant asserts that the statute Section 3340, R.S.Mo.1939, Mo.R.S.A. § 3340, which provides that "all contracts which, by the common law, are joint only, shall be construed to be joint and several" has no application to this case because plaintiff herein is not suing her on her alleged contract with Roberts and claims no contract with her; that the court is not called upon to "construe" the contract between Roberts on the one side and Stanley Sztukouski and Marie Sztukouski, his wife, on the other; that, in fact, no such contract is alleged or mentioned in the amended petition; that plaintiff, therefore, is not entitled to a lien on the real estate for the reason that the evidence did not prove or tend to prove the allegations in the amended petition on which the case was tried so far as Marie Sztukouski is concerned, and that the judgment of the trial court should be affirmed.

We are unable to agree with the contention of Marie Sztukouski that the verdict was manifestly proper and must stand because a different result could not be permitted to stand. We think it is unnecessary to discuss the question of "joint" contracts under the statute Section 3340, supra, referred to by said defendant, because there is another statute, namely, Section 3546, R.S.Mo.1939, Mo.R.S.A. § 3546, which explicitly applies to the facts of this case. It provides:

"Every mechanic or other person, who shall * * * furnish any material, * * * for any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this article, shall have for his * * * materials, * * * furnished, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or if such building, erection or improvement be upon any lot of land in any town, city or village, then such lien shall be upon such building, erection or improvements, and the lot or land upon which the same are situated, to secure the payment for such * * * materials * * * as aforesaid."

We think that the above statute is clearly controlling under the facts in evidence and that labored discussion is unnecessary to show its applicability. It plainly gives a lien to anyone who furnishes materials for an improvement on land by virtue of a contract with the owner "or his agent, trustee, contractor or subcontractor."

It is the established rule that the statutes giving liens for materials used for making improvements upon land which extend to the improvements themselves, and the land upon which they are made, are remedial in their nature and should be given a liberal construction so as to carry out their just and beneficient objects. Dugan Cut Stone Co. v. Gray, 114 Mo. 497, 21 S.W. 854, 35 Am.St.Rep. 767; St. Louis Concrete Products Mfg. Co. v. Walker. Mo.App., 64 S.W.2d 131.

The mere fact that the contract which defendant Marie Sztukouski entered into with her contractor (Roberts) was signed also by her son Stanley cannot defeat her liability as the actual owner of the property. Furthermore, the fact that the original petition filed by plaintiff erroneously alleged that the contract was entered into by Stanley Sztukouski and Marie Sztukouski, his wife, jointly, is immaterial. The original petition was abandoned when the amended petition was filed and the case was tried on the amended petition which alleged that defendant Marie Sztukouski alone was the owner at the time the contract was made. It is true that the contract when offered in evidence showed what purported to be the signatures of Stanley Sztukouski and Mary...