Boyer Lumber, Inc. v. Blair
| Decision Date | 09 April 1974 |
| Docket Number | No. 34945,34945 |
| Citation | 510 S.W.2d 738 |
| Parties | BOYER LUMBER, INC., Plaintiff-Respondent, v. Lawrence E. BLAIR et al., Defendants-Appellants, Vernon Hamby et al., Defendants, Gary M. Busenbark, etc., et al., Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Bryan, Cave, McPheeters & McRoberts, Robert G. Brady, J. Roger Edgar, John J. Hennelly, Jr., St. Louis, for plaintiff-respondent.
Dearing, Richeson, Roberts & Wegman, Jack C. Stewart, Hillsboro, for defendants.
Robert L. Carr, Potosi, for Washington County Bank.
E. L. McClintock, Jr., Flat River, for Gary M. Busenbark.
This is an 'equitable' mechanic's lien proceeding under §§ 429.270--429.340, RSMo., 1969, V.A.M.S., filed by plaintiff-respondent, Boyer Lumber, Inc. against (a) Mr. and Mrs. Lawrence E. Blair, the owners of certain real property in Washington County, (b) the cestui que trust of a deed of trust, (c) the trustee, (d) the general contractor employed to build a residence for the Blairs and (e) several other lien claimants who furnished materials for the construction of the residence. The trial court rendered judgment in favor of the lien claimants--Boyer Lumber, Gary M. Busenbark, d/b/a Busenbark Carpet Company and Roe Johnston, d/b/a Johnston Plumbing against the general contractor, Vernon Hamby, and imposed a lien upon certain proceeds of insurance which, by stipulation of the parties, represented the real estate of the Blairs upon which the liens were imposed.
It would serve no useful purpose to detail all of the complex, innumerable and minute facts of this proceeding. We shall state only those facts necessary for a determination of the issues presented. Basically, the facts which give rise to this dispute are the following. Mr. Lawrence Blair and his wife Mary Ann purchased a parcel of real estate in Washington County sometime in 1968. They decided to build a six-room residence thereon. They dealt with a general contractor, Vernon Hamby, who subsequently became bankrupt. In November, 1968, Hamby poured 'footing' for the residence. Finally, Mr. and Mrs. Blair decided to proceed with the construction of the residence and on February 14, 1969 entered into an 'agreement' with Hamby which provided that Hamby would 'build' a house for $17,395.00. All of the materials, save carpeting, plumbing and brick 1 were furnished by Boyer Lumber, whose vice president is Richard Boyer. While the 'footing' was poured in November, 1968, the construction of the residence 'actually started in the spring'--March or April, 1969. On April 12, 1969, Mr. and Mrs. Blair executed a deed of trust to Robert L. Carr, trustee for the cestui que trust, the Washington County Commercial Bank, to secure a promissory note dated April 12, 1969 in the amount of $16,000.00. The deed was recorded on April 15, 1969.
By May 10, 1969, construction had proceeded to the extent that the exterior walls were up, the roof was on, the shingles on, the ceiling in, the exterior sheeting was on and the room partitions were in. On that date a tragic fire occurred in the attic of the house, next to the roof, which burned a hole in the roof and caused some other damage. Some paneling which had been delivered to the home site was stacked on the floors but none was, as yet, on the walls. Replacement costs, according to Mr. Boyer, on account of the fire, came to approximately $2,000.00. Some, probably all, of the stacked paneling, according to Mr. Blair, was burned.
All of the materials, lumber, etc. were furnished by Boyer Lumber. Mr. Boyer testified that his company furnished the lumber that was 'used to form up the foundation work' and furnished lumber, paneling, plywood, sheet rock, plaster board, junction boxes, wire, nails, paint, etc.--all of which was used in the construction of the house between November, 1968 and August, 1969. His invoices, most of which were in his handwriting, totalled $12,334.95. He delivered 'quite a bit' of the materials himself and 'saw' other materials on the job. 'The materials represented in these tickets were either delivered by me or I'd seen substantially that on the job site, correct.' To his knowledge, the materials described for which he sought a lien were 'incorporated into the (Blair) property.' On cross-examination he admitted that he did not know 'whether all the material delivered to the job site went into the house,' but 'I know the material was delivered to the job site, and that a house was erected.' He was cross-examined concerning the claim for a great number of items such as tools, nails, paint, poles, paint rollers, brushes, knives, rakes, etc. which, according to him, were 'used on the job.'
By August, 1969, the residence was 99% complete.
One of the lien-claimants, Gary Busenbark, installed carpeting sometime in August, 1969. The value of such installation was $1,634.81. On November 7, 1969, he caused a notice of lien to be served on the Blairs and the cestui que trust and trustee.
Roe Johnston furnished materials and services in the amount of $321.81 in August, 1969. He caused a notice of lien to be served on October 28, 1969, upon the Blairs but no notice, according to the record was served upon the cestui or the trustee.
Prior to the filing of this 'equitable' mechanics lien action by Boyer, Johnston had filed a mechanic's lien statement in the circuit court of Washington County. Busenbark had filed his statement in the circuit court, and Reichert filed his lien statement in the magistrate court which was removed to the circuit court.
At this stage of the narrative, Boyer Lumber, on May 5, 1970, filed its petition in equity 'To Enforce Mechanic's Lien' after giving notice to the parties and after filing a 'just and true account' of its demand. Named as defendants in the 'equitable' suit were the Blairs, Hamby, Washington County Bank, Robert Carr, Harold Reichert, Gary Busenbark and Roe Johnston.
On May 29, 1970, Johnston filed a 'Petition in Equity to Enforce Mechanic's Lien' stating that he had filed a mechanic's lien 'but had not yet filed his petition to enforce same when the (Boyer) petition in equity . . . was filed. . . .' In his pleading he stated that Hamby was indebted to him in the sum of $321.81 and prayed judgment against Hamby and the Blairs in that amount. He also filed a separate answer to the Boyer petition.
On May 22, 1970, Busenbark filed a separate answer. In it he admitted paragraph 21 of the petition which alleged that Busenbark claimed to have a mechanic's lien in the amount of $1,671.07 and that he had filed an action to enforce the lien. Busenbark prayed that the 'lien of Defendant Busenbark be declared to be a superior and paramount lien to that of plaintiff (Boyer).'
The Blairs also filed an answer to Boyer's and Johnston's petition, and a cross-claim against Hamby. Washington County Bank and Carr also filed a separate answer. Reichert did not plead to the petition.
Prior to trial which began on March 25, 1970, the attorneys for the parties engaged in a colloquy before the court. The attorney for Busenbark stated that it was his understanding, after an objection had been made to the propriety of his 'pleading', that there was a 'gentlemen's agreement' that all of the causes could be consolidated and that he had filed proper 'pleadings' in the Boyer suit. It was, he said, his understanding that the consolidation made Busenbark's petition in his legal action a 'pleading' to Boyer's equitable action. He objected 'very strongly' to the suggestion raised by counsel for Boyer 'raising technical questions concerning the pleadings.' Counsel for Boyer, however, was 'convinced that it is incumbent on a lien holder . . . to assert his claim by proper pleading to shoulder his own burden to conform with his own evidence and prove his case.'
After the pre-trial discussion, trial commenced and the evidence was adduced.
The thrust of the Blair's defense was principally directed to the Boyer lien claim. The thrust was that all of the material sold and delivered by Boyer could not reasonably have been used in the construction of the house, because the materials sold and delivered exceeded that which reasonably could have been used so that the material did not actually enter the home because some of the material had been carted away and used on other jobs, and because some of the materials were non-lienable items so that no 'just and true account' was filed.
Mrs. Blair testified that after the fire Hamby's son drove away three or four loads of 'stuff' in his pick-up, and Paul Essmyer, a carpenter employed by Hamby, stated that on one occasion after the fire he helped load 2 4's--2 12's onto a flat bed truck which materials he described as 'new lumber.'
One of the principal witnesses for the Blairs, Mr. William H. Bust, who was in the contracting business and who made an inspection of the house with a view towards 'what's in it by way of material' concluded that the material sold exceeded what could reasonably have entered the home including 2 4's, 2 6's, 2 8's, 2 10's, 2 12's, plasterboard, plywood and certain other materials all amounting to approximately $3,000.00. Mr. Bust did not tear into the walls of the building and relied on some information furnished by the Blairs. 2 The total amount of the excesses was approximately $3,000.00.
After trial, lengthy briefs were filed, the cause was taken under advisement, and on June 13, 1972, the court rendered its judgment. The court found that the construction of the Blair property commenced on November 22, 1968 and that Boyer Lumber furnished materials up to and including August 26, 1969. The materials furnished were 'used or consumed' in the construction of the home, were delivered to the construction site and included 'replacement of those damaged in the...
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