O'brien v. Hanson

• Court: Missouri Court of Appeals
• Writing for the Court: BAKEWELL
• Citation: O'brien v. Hanson, 9 Mo. App. 545 (Mo. App. 1881)
• Decision Date: 15 February 1881
• Parties: JOHN O'BRIEN, Defendant in Error, v. CATHERINE B. HANSON ET AL., Plaintiffs in Error.

9 Mo.App. 545

JOHN O'BRIEN, Defendant in Error,

v.CATHERINE B. HANSON ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Feb. 15, 1881.

1. That the price of some of the items of an account was agreed upon, while the price of others was not, is not conclusive that the account was not a running account within the meaning of the mechanics' lien law.

2. That notes were given for part of the goods in the account is not conclusive that the account was not a running account.

3. A mechanic's lien attaches to the building and to whatever interest the person contracting as owner has in the land when the first item of the account is furnished.

4. Where the person contracting as owner has an inchoate title, which is perfected pending the improvements, the lien attaches to the interest he then has.

5. The interest of an heir in the estate pending the administration will support a mechanic's lien for improvements erected upon the realty.

6. A lien may attach to tanks and a sheet-iron floor placed in and attached to a factory with the intention of making them a permanent improvement, where they are especially fitted and adapted to the transaction of the business conducted in such factory.

7. Where the cause was tried upon the issues as made by the answers, that the answer, which was a general denial, of one defendant was stricken out, is immaterial, where another general denial by another defendant remained on file.

ERROR to the St. Louis Circuit Court, ADAMS, J.

Affirmed.

D. W. SADLER, for the plaintiffs in error: The party must be owner or proprietor of land when material is furnished or work done.--Ph. on Liens, sect. 65; Porter v. Tooke, 35 Mo. 107. A vendee who holds under a contract that cannot be enforced is not such owner or proprietor.-- Metcalf v. Hummell, 1 Gray, 297; Gray v. Carlton, 35 Me. 481; 14 Pick. 49; 3 Serg. & R. 541; 106 Mass. 228. The lien given by the statute of this State cannot attach to property which a party did not own at the time of the execution of the contract, or when materials are furnished or work done.--Ph. on Liens, sect. 74; Howard v. Veazie, 3 Gray, 233; Hays v. Fessenden, 106 Mass. 228; Sibley v. Casey, 6 Mo. 164. Hanson's deed from the administrator was not a completion of an inchoate right or the enlargement of an existing estate such as is treated of in the case of Kirby v. Tead, 13 Metc. 149. It was a new and distinct title, utterly destroying his prior interest and vesting an independent fee-simple title, no way dependent on his former interest.-- Thaxter v. Williams, 14 Pick. 52; Selkirk v. Coff, 13 Gray, 313; Bradewell v. Clark, 39 Mo. 170. The creditors of the estate of Ralph Hanson held a quasilien on the lots described, for the payment of their debts.-- Mack v. Woodruff, 87 Ill. 573. And the sale by order of the Probate Court destroyed all the interest Clarence had as heir.-- Kansas City Hotel Co. v. Bauer, 65 Mo. 279. The dry-floor did not become a fixture, nor was it in any way attached to the building. No mechanic's lien could attach for the furnishing thereof.-- Collins v. Mott, 45 Mo. 100; Hauessler v. Missouri Glass Co., 52 Mo. 452; 1 Mo. App. 281. It may be removed without injury to the building or lessening the value of the realty.-- Graves v. Pierce, 53 Mo. 423; Chitty on Con. (11th Am. ed.) 499. The dryfloor is no part of the building or machinery.-- McMahon v. Vickroy, 4 Mo. App. 229FISHER & ROWELL, for the defendant in error: The refusal of the defendants to testify warranted the court in entering judgment against them.-- Rev. Stats., sect. 4016; Haskell v. Sullivan, 31 Mo. 435; Snyder v. Raab, 40 Mo. 167. The fact that the price of some of these articles was agreed upon and that the notes in question were taken does not prove that this account was not continuous.-- Fathman v. Phelan, 3 Mo. App. 605; Madison Coal Co. v. The Colona, 36 Mo. 446; Ring v. Jameson, 66 Mo. 428; McMurray v. Taylor, 30 Mo. 163. A lien attached to the tanks and sheet-iron floor.-- Goodin v. Hall Assn., 5 Mo. App. 290; Cohen v. Kyler, 27 Mo. 122; Stockwell v. Campbell, 39 Conn. 362; Rogers v. Crow, 40 Mo. 95. The title to the land was sufficient to support the lien.-- Fleitz v. Vickery, 3 Mo. App. 593; 65 Mo. 288; Schulenburg v. Vrooman, 7 Mo. App. 133. There can be no dispute that when Clarence Hanson got his deed to these lots, it related back and passed the title as of the date of his purchase.-- Dubois v. Wilson, 21 Mo. 313; Allen v. Sales, 56 Mo. 38; Douglas v. St. Louis Sink Co., 56 Mo. 389; Reilly v. Hudson, 62 Mo. 383; Donaldson v. Holmes, 23 Ill. 85.

BAKEWELL, J., delivered the opinion of the court.

This is an action to establish a mechanic's lien. The suit is against the persons at whose instance the work and materials were furnished, who are alleged to have been the owners of the property to which these are said to have been attached. The trustee and cestui que trust of a deed of trust upon the premises are also made defendants, and filed separate answers, one of which contained a general denial. There was a judgment establishing the lien.

There was evidence tending to show that Ralph Hanson died in October, 1875, owning the lots in question, on which he was operating a bone-black factory at the time of his death. By his last will he expressed a desire that his wife should conduct the bone-black business, and gave her power to sell the same at a reasonable price, and directed that after the sale of the business all his estate should pass in equal parts to his wife and his three children. The factory burned down after Hanson's death, and was rebuilt. The widow and her son Clarence, who are defendants in this case, carried on the business at the same place, as copartners. There was an understanding between the widow, who administered, and Clarence, that she would sell the interest of the estate in these lots to him as soon as this could be done; and this was done under an order of sale obtained on September 26, 1878, in the Probate Court. The sale was made November 14th, and the deed executed December 28th, the sale having been previously approved.

In August, 1878, according to plaintiff's testimony, plaintiff, who was then carrying on a boiler and machine shop, agreed to furnish C. B. Hanson & Co., the firm being composed of defendants Catherine and Clarence, such articles in his line of business as they might need for completing the bone factory. The testimony is contradictory as to whether such conversation took place. Plaintiff, under the order of defendants Hanson, did furnish to them machinery and work to the reasonable value of $340, the amount of the account in suit. The first item was furnished on August 31, 1878, and the last on December 16, 1878. The principal items are a tank, at $173, put up September 3d, and a sheet-iron floor put down on November 28th, which came to $153, at so much a pound. The other items are labor, and small articles which went into the factory. On September 15, 1878, a note of the firm was given to plaintiff for $175, at four months, and the account credited; on November 26th, another note, at sixty days, for $153.90, was given and credited in like manner. Nothing was paid on the notes. They were surrendered at the trial.

On January 9, 1879, Catherine and Clarence Hanson gave a deed of trust to Leslie, as trustee of Mathiason, to secure sundry notes made by Catherine and Clarence Hanson to the amount of nearly $5,000.

1. It is contended by defendants that the demand for which the lien was filed arose out of distinct contracts, and was not a running account. The fact that the price of some of these articles was agreed upon, while that of another was not, is not conclusive; nor is the fact that notes were given for part of the goods conclusive that the account was not a running account. Fathman v. Phelan, 3 Mo. App. 605. The court left this question to the jury, telling them that “if each or any of the items sued for was the subject-matter of a special, independent contract or agreement between plaintiff and defendants, C. B. Hanson & Co., disconnected from the others, then the indebtedness for such item accrued at the time the materials or labor constituting such items were furnished and the articles or work delivered.” The jury found that the account was a running account, and there was...