A. E. Birk & Son Plumbing & Heating, Inc. v. Malan Const. Co.

• Decision Date: 15 February 1977
• Docket Number: No. 37060,37060
• Parties: A. E. BIRK & SON PLUMBING & HEATING, INC., et al., Plaintiffs-Respondents, v. MALAN CONSTRUCTION COMPANY et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 611

548 S.W.2d 611

A. E. BIRK & SON PLUMBING & HEATING, INC., et al., Plaintiffs-Respondents, v. MALAN CONSTRUCTION COMPANY et al., Defendants-Appellants.

No. 37060.

Missouri Court of Appeals, St. Louis District, Division Three.

Feb. 15, 1977.

Motion for Rehearing or for Transfer Denied March 15, 1977.

Spradling, Drusch & Dillard, R. Howard Dillard, Cape Girardeau, for defendants-appellants.

Finch, Bradshaw, Strom & Steele, Limbaugh, Limbaugh & Russell, Vogel & Frye, Cape Girardeau, for plaintiffs-respondents.

KELLY, Presiding Judge.

This appeal is from a judgment of the Circuit Court of the Cape Girardeau Court of Common Pleas in favor of A. E. Birk & Sons Plumbing and Heating, Inc., Cape Ready Mix Company, Inc., Riverside West Builders Supply, Inc., and Southern Illinois Stone Company and against Crites and Sailer Construction Company in connection with the construction of a K-Mart building in Cape Girardeau, Missouri, and the establishment of mechanics' liens against the property owned by defendant Malan Construction Company. A money judgment was also entered against Crites and Sailer Construction Company in favor of Rose Con, Inc., but Rose Con, Inc. was not awarded a mechanic's lien against the property. The judgments entered by the trial court, in this court-tried case, were as follows: Riverside West Builders Supply, Inc., $1,365.75; Southern Illinois Stone Company, $26,420.86; A. E. Birk & Sons Plumbing and Heating, Inc., $29,215.59; Cape Ready Mix Company, Inc., $31,704.34 and Rose Con, Inc., $3,399.44. Rose Con, Inc. has not appealed from the judgment denying it a mechanic's lien and subsequent to the institution of this appeal the mechanic's lien of Cape Ready Mix Company, Inc. was disposed of by agreement. The judgment against Crites and Sailer Construction Company has not been appealed by that company's Trustee in Bankruptcy.

The appellants are Malan Construction Company, the owner of the real estate, First National Bank of Minneapolis, Richard Roth, Trustee, the State of California Public Employees Retirement System, S. S. Kresge Company, and the Henry Ross Construction Company, the general contractor on the job. Crites and Sailer Construction Company was a sub-contractor for Ross on this project and the lien claimants were mechanics or materialmen who had worked for or furnished materials to Crites and Sailer Construction Company in connection with the K-Mart project.

At trial it was stipulated by and between the parties that any recoveries in the case would depend upon the proof of mechanics' liens, inasmuch as no claim of direct debt was to be made against the property owner. ¹

In order to simplify the trial, the parties also entered into numerous stipulations and agreements leaving for determination by the trial court the following issues with respect to the parties:

A. E. Birk & Sons Plumbing & Heating, Inc.:

(1) was the mechanic's lien timely filed?

(2) was proper notice of the intent to file mechanic's lien given as required by law?

Riverside West Builders Supply, Inc.:

(1) was proper notice of intent to file mechanic's lien given as required by law?

Southern Illinois Stone Company:

(1) did this lien-claimant file a just and true account required by § 429.080 RSMo. 1969, as amended?

(2) was proper notice of intent to file mechanic's lien given as required by law?

(3) were the charges made reasonable?

One of the stipulations was that the lien-claimants filed mechanic's lien statements in the office of the Clerk of the Common Pleas Court of Cape Girardeau County on the dates set out:

A.E. Birk & Sons Plumbing

& Heating, Inc. -- March 15, 1974

Riverside West Builders

Supply, Inc. -- February 14, 1974

Southern Illinois Stone

Company --February 22, 1974

A. E. Birk and Sons Plumbing & Heating, Inc., and the appellants stipulated that the only item of work and materials purported to have been performed on a date which would satisfy the lien filing requirements and render the lien timely filed as of March 15, 1974, was work and materials furnished by the plaintiff on November 16, 1973.

Upon completion of the trial the trial court entered an Order, Judgment and Decree containing extensive findings of fact and conclusions of law in support of its judgment for the parties as previously stated and establishing the mechanics' liens against the real estate.

On appeal the appellants contend that the judgment of the trial court should be reversed because (1) the property owner, Malan Construction Company, did not receive actual notice of respondents' intent to file mechanics' liens, (2) the trial court erred in awarding a decree establishing a mechanic's lien in favor of Birk (as respondent A. E. Birk & Sons Plumbing & Heating, Inc., shall hereinafter be identified) because the statement of mechanic's lien was not filed within four months after the account had accrued, and (3) the trial court erred in awarding Southern (as Southern Illinois Stone Company shall hereinafter be identified) a mechanic's lien for the reason that the tax lien filed by Southern was not a just and true account of the monies due it from Crites and Sailer Construction Company.

Our review of this court-tried case is governed by the principles announced in Murphy v. Carron, 536 S.W.2d 30, 32(1, 3) (Mo. banc 1976) and Rule 73.01 V.A.M.R., and we are required to sustain the judgment of the trial court unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. We are also cautioned by Murphy v. Carron, supra, to exercise the power to set aside a decree or judgment on the ground that it is "against the weight of the evidence" with caution and with a firm belief that the decree or judgment is wrong. We find none of the aforementioned infirmities in this judgment and we therefore affirm.

Malan Construction Company's first contention is that it did not receive actual notice of respondents' intention to file mechanics' liens and therefore all three of these liens must fail. This contention is without merit because each of the respondents filed their ten day notice of intent to file mechanic's lien with the Recorder of Deeds in Cape Girardeau County. §§ 429.100, 429.110 RSMo. 1969. Malan, the owner of the realty, was a Michigan corporation with no registered agent in Cape Girardeau County, although it did have one in St. Louis. Section 429.110 RSMo. 1969, provides that when the owner of the property sought to be charged with a lien shall not be a resident of Missouri or shall have no agent in the county in which the property sought to be made subject to the lien is situate, the notice prescribed by § 429.100 RSMo. 1969, may be given constructively by filing it with the Recorder of Deeds for the county in which the property is situate. In view of Malan Construction Company's admission that it had no agent in the county wherein the real property was situate, Cape Girardeau County, notice pursuant to the provisions of § 429.110 RSMo. 1969 was lawful in this instance and respondents' liens do not fail for lack of notice as the appellant contends.

Whether Birk's statement of mechanic's lien was timely filed hinges on whether work performed by Birk on November 16, 1973, in relation to some broken "clean-outs," ² was part of the original contract so that the filing of its mechanic's lien statement on March 15, 1974, complied with the requirement of § 429.080 RSMo. 1969, that the statement be filed within four (4) months of the date on which any indebtedness accrued.

Plaintiff's evidence on this issue was supported by the testimony of August W. Birk, the President of Birk's, Elbert Birk, its foreman, interrogatories of Malan to Birk and Birk's answers thereto, some of the stipulations, and Plaintiff's Exhibits 1 and 2, "Work Book" and "Time Sheets," respectively. The real bone of contention is whether repair of some broken "clean-outs" on November 16, 1973, admittedly some months after what appellants claim was the completion of the contract, was chargeable to Crites' and Sailer's account.

The project out of which this litigation arose was the construction of a K-Mart building on property owned by Malan. Ross Construction Company was the general contractor on the project and Crites (as Crites and Sailer Construction Company shall hereinafter be identified) was a sub-contractor to Ross (as Ross Construction Company shall hereinafter be identified). Birk, a general plumbing, heating and ventilating contractor, had, prior to this project, performed several jobs for Crites. Loy Crites, of Crites, phoned August Birk, Birk's president, during the summer of 1973 and told Birk that Crites had the K-Mart job and inquired whether Birk was interested in doing the piping work. Birk replied that the company would. Loy Crites told him that the sewer pipe had already been ordered and that Birk was to order anything else necessary for the job and to back-charge Crites for it. This agreement was not reduced to writing. It was agreed, however, that it would be a "cost-plus" contract. Birk would receive its "going hourly rate" for labor plus a reasonable price for cost of materials it furnished. Both firms had previously done business and this type of contract was not unusual in their prior dealings. Crites knew Birk's "hourly-rate" and also that Birk would treat Crites fairly on the costs of materials going into the job.

Birk entered upon performance of the agreement, installing the storm and sanitary sewers at the site, and Crites also asked it to install the water mains. Excavations were made, the necessary pipework laid, and the excavations then back-filled. When the work was done Birk also obtained several other contracts on the project, including some with Ross and some with Malan, although none of these were in connection with Crites. Birk commenced work on the project on July 31, 1973, and had men on the job...