Bremer v. Mohr

• Decision Date: 01 March 1972
• Docket Number: No. 9110,9110
• Citation: 478 S.W.2d 14
• Parties: L. T. BREMER et al., Plaintiffs-Respondents, v. Alvin L. MOHR and Agnes C. Mohr, Husband and Wife, Defendants-Appellants, and Albert Hamlin, Defendant.
• Court: Missouri Court of Appeals

Page 14

478 S.W.2d 14

L. T. BREMER et al., Plaintiffs-Respondents, v. Alvin L. MOHR and Agnes C. Mohr, Husband and Wife Defendants-Appellants and Albert Hamlin, Defendant.

No. 9110.

Missouri Court of Appeals, Springfield District.

March 1, 1972 Modified on Court's own motion and Rehearing Denied March 16, 1972.

James B. Harrison, Sullivan, G. C. Beckham, Steelville, for plaintiffs-respondents.

Thomas J. Briegel, Union, for defendants-appellants.

TITUS, Chief Judge.

Nine subcontractors, as plaintiffs, brought this action to obtain judgment against defendant Hamlin, the original contractor, and to enforce such as mechanics' liens against certain premises owned by defendants Mohr. Chapter 429; Civil Rule 101. ¹ Two subcontractors received judgment by stipulation, and defendants Mohr have appealed from the judgment as entered on verdicts in favor of the other seven. Defendant Hamlin has not appealed.

In his verified lien account, and in Count VIII of the petition, plaintiff Hudson described the items of materials and work furnished by him in compliance with the contract he made with defendant Hamlin as: 'Sheet Metal, Furnace, Registers, Air Conditioner and Material to install same--$1,225.75.' By answer, trial motions ore tenus, motion for a new trial, and in the first 'point' of their brief on appeal, defendants Mohr have contended that plaintiff Hudson was not entitled to a lien upon the property in question, and that Count VIII should have been dismissed because Hudson failed 'to file . . . a just and true account of the demand due him . . . after all just credits have been given.' (Our emphasis). § 429.080.

On direct examination of Hudson at trial, it was shown that although he agreed with the original contractor to install a complete heating and air conditioning system in the Mohr residence for $1,225.75, he had neither furnished nor installed an air conditioning unit. Questions propounded to Hudson by his attorney held a soupcon that inclusion of the air conditioner in the lien account and petition resulted from counsel's misunderstanding. Following this, Hudson agreed his claim should be reduced by $315 (said to be the value of the air conditioning unit), and testified the corrected balance of $910.75 represented a 'fair charge' for the materials and labor he had actually furnished. However, on cross-examination, Hudson admitted his revised balance of $910.75 erroneously included an $80 charge for 'a service policy (which) goes with the air conditioner,' and that this sum should be allowed as an additional credit. Except for the suggested misunderstanding of his attorney, which related only to the air conditioning unit, and in spite of the trial court's observation that 'I had hoped there would be some evidence why (the lien account) was in that shape,' Hudson did not undertake to explain why the air conditioner and service policy charges had been included in the lump sum stated in his verified lien statement and petition; neither did he elucidate upon his exclamation that 'I said we did not put the whole thing in. We didn't complete the job.' A witness for defendants Mohr, who finished Hudson's subcontract after he quit the job, said that Hudson's accounting should have contained additional credits for a motor he did not supply for the furnace and for labor and materials which Hudson did not furnish when he omitted installing the motor and air conditioner. This witness opined that the labor and materials actually provided by Hudson had a reasonable value of $400. The verdict assessed Hudson's damages against the original contractor at $400 and found that he was 'entitled to a Mechanic's Lien in the premises.'

The principal issues for determination anent Count VIII were two in number, id est, (1) whether plaintiff Hudson was entitled to a personal judgment against the original contractor, and (2) whether plaintiff Hudson should have a mechanic's lien against the property of defendants Mohr. Hill-Behan Lumber Co. v. Hammer Dry Plate Co., Mo.App., 162 S.W.2d 348, 351. A personal judgment against the original contractor does not ipso facto entitle the subcontractor to a lien against the property of the owner, but if a lien is allowable, it does not necessarily follow that it must be in the same amount as the personal judgment or contract price. Mid-West Engineering & Const. Co. v. Campagna, Mo., 421 S.W.2d 229, 234(5). Consequently, in the absence of any claim or showing that a personal judgment against the original contractor would in and of itself result in prejudice to the owner, the latter would have no standing to ask for dismissal of the subcontractor's claim against the original contractor or to complain of any errors committed against the original contractor. Dean v. Young, Mo., 396 S.W.2d 549, 558(13). Therefore, when defendants Mohr assert that the trial court erred in denying their various motions to dismiss Count VIII, they are technically incorrect; it would not have been proper for the trial court, for the reasons given, to have dismissed all of the claims embraced by Count VIII under the circumstances in this case. Nevertheless, the court nisi and all the parties were well aware and fully informed of the relief sought by defendants Mohr, which was for a ruling that Hudson, as a matter of law, was not entitled to a lien upon their property. We shall so consider the motions and that point on appeal. Cf. Bailey v. Kershner, Mo.App., 444 S.W.2d 10, 11--12(1).

It is said that the mechanics' lien law is just in principle and should be liberally construed. Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. (banc) 1178, 1185, 171 S.W.2d 580, 584(9), 146 A.L.R. 917, 922. Nonetheless, the cases also say that a lien claimant must substantially comply with the statute in order to avail himself of the benefits thereof (Stewart Concrete & Material Co. v. James H. Stanton Const. Co., Mo.App., 433 S.W.2d 76, 80(7)), and a substantial compliance requires the filing of 'a just and true account of the demand due him.' § 429.080, supra. If the lien claimant is the original contractor and he has made a lump sum contract with the owner, his lien statement in all cases need not be itemized in order to be sufficient. Wadsworth Homes, Inc. v. Woodridge Corporation, Mo.App., 358 S.W.2d 288, 291(3). On the other hand, when the lien claimant, as here, is a subcontractor and his lien account only states a lump sum and is not itemized, it does not demonstrate substantial compliance with § 429.080, supra, and is not a 'just and true account' as required by law. Mississippi Woodworking Company v. Maher, Mo.App., 273 S.W.2d 753, 755--756(2--4); Marshall v. Hall, Mo.App., 200 S.W. 770, 774--775(9). The reason for this difference is that a contractual relationship exists between the landowner and the original contractor, and the owner knows or is held to know the elements of his agreement; but when the matter rests between a subcontractor and the owner, the situation is extremely different for there is no direct contractual relation between the owner and the subcontractor, and the only way the owner can ascertain the correctness vel non of the claim is from the verified lien account. Thus, the only way the subcontractor may substantially comply with § 429.080, supra, is to itemize his statement.

The account filed by plaintiff Hudson was a lumping charge of $1,225.75 for 'Sheet Metal, Furnace, Registers, Air Conditioner and Material to install same.' Ignoring for the moment that this is a most generalized statement, when plaintiff Hudson testified concerning his account it was ascertained that he had not furnished an air conditioner, that his lump sum account contained an $80 service policy charge for which the law gives no lien, and that Hudson had 'not put the whole thing in (and) didn't complete the job.' On the basis of this evidence, neither the jury nor the law...