Brown v. Wright

• Decision Date: 08 March 1887
• Parties: S. A. BROWN ET AL., Respondents, v. A. W. WRIGHT ET AL., Appellants.
• Court: Missouri Court of Appeals

25 Mo.App. 54

S. A. BROWN ET AL., Respondents, v. A. W. WRIGHT ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Affirmed.

JOHN O'DAY and E. D. KENNA, for the appellants: The property upon which the improvements were made is not described. McGuinness v. Boyle, 123 Mass. 570; Stevens v Lincoln, 114 Mass. 476; Foster v. Cox, 123 Mass. 45; Lemly v. Iron & Steel Co., 65 Mo. 546. It was error to include in the decree property which was no part of the curtilage. Chouteau v. Thompson, 2 Ohio St. 114; Bankes v. Cartes, 18 Conn. 348. The plaintiffs would be entitled to a lien for that which was contemplated by the contract, but for nothing more, had the building been constructed in pursuance of its provisions but, under the evidence in this case, the materials were not furnished under " any contract with the owner, his agent, contractor, or sub-contractor." Houck on Liens sect. 48; Hodges v. Railroad, 29 Vt. 220; Crump v. Mining Co., 7 Gratt. 352; Bank v. Trust Co., 14 Wis. 325; Blen v. Bear River Co., 20 Cal. 602; Bank v. McKee, 2 Pa.St. 318; Bacon v. Ins. Co., 31 Miss. 116; Garnett v. Berry, 3 Mo.App. 197.

C. W. THRASHER and J. T. WHITE, for the respondents: The contract of Wright with the hotel company, as shown by the evidence, was sufficient to support the plaintiffs' lien. Bruce v. Berg, 8 Mo.App. 204; Sontag v. Poerge, 14 Mo.App. 577; Reicke v. Saunders, 3 Mo.App. 565; Great Western Mfg. Co. v. Hunter, 16 N.W. 759. The president of the Ozark Hotel Company had the power to change details in the plan of the building, and order any necessary materials for that purpose, or even to make a new contract. Rev. Stat., sect. 731; Morawetz on Corporations, sect. 252; Smith v. Smith, 62 Ill. 493-496; Hearn v. Railroad, 53 Mo. 324. Enough appears in this description to fully identify the property. De Witt v. Smith, 63 Mo. 263; Caldwell v. Asbury, 29 Ind. 451; Bradish v. James, 83 Mo. 313; Phillips on Mech. Liens [[[[[[2 Ed.] p. 623, sect. 382; Tibbetts v. Moore, 23 Cal. 508. But even if it had been, it would be immaterial, as the title to the land is not in controversy in this case. Fleitz v. Vickery, 3 Mo.App. 593. It is immaterial whether the hotel building covered all the ground described or not, since the evidence shows that it was all enclosed with the hotel and used as a part of the hotel premises. Meinholz v. Grodt, 4 Mo.App. 568; Phillips on Mechanic's Liens [2 Ed.] 337-340 Oster v. Rabeneau, 46 Mo. 595.

OPINION

ROMBAUER J.

The plaintiffs are lumber dealers, who contracted with the defendant, Wright, to furnish certain lumber to be used in the construction of a hotel building to be erected by the defendant, the Ozark Hotel Company. All of the lumber thus furnished was used by Wright in the construction of the hotel building, and a balance of $716.30 remaining unpaid to the plaintiffs, they filed a lien on the hotel and lots whereon the same is erected, having first given the statutory notice of their intention to do so to the defendant, the Ozark Hotel Company.

The plaintiffs thereupon brought this suit against Wright, the contractor, the Ozark Hotel Company, a corporation, and the defendants, O'Day and Kenna, who are stated in the petition as owning some interest in the property. The trial resulted in a judgment in the plaintiffs' favor both as to the debt and lien.

The defendants filed motions for new trial and in arrest, which were overruled, whereupon they appeal. They now assign, in support of their motion in arrest, the fact that the petition states no cause of action for a lien, because it does not contain a description of the property, and because E. D. Kenna was not mentioned in the lien papers as owner, nor served with notice of the lien.

The objections are not worthy of serious notice. The petition described the property as " a certain brick building known as the Ozark Hotel, situated on a lot or tract of land known and described as follows: Lots nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, and eighteen (9 to 18) in block thirty-nine (39) in the town of North Springfield, in Greene county, and state of Missouri," a description sufficiently definite for all purposes. Phil. on Mech. Liens, sects. 379, 380, and cases cited. Nor was it necessary to mention E. D. Kenna, either in the lien papers or in the petition, or to notify him of the proposed filing of the lien, in any manner. It is not claimed that he was the owner of the property, either when the contract was made, or when the materials were furnished. He appears to be a trustee in a subsequent deed of trust, and was in no sense an owner within the provisions of sections 3176 or 3190, of the Revised Statutes Kuhleman v. Schule, 35 Mo. 142.

In order to pass intelligently on the merits of the defendants' motion for new trial, a statement of the facts, as disclosed by the uncontroverted evidence, is essential. It appears that Wright contracted in writing with the Ozark Hotel Company, a corporation, to do certain work and furnish certain materials for the erection of this building, for the sum of $12,536. The plans were mislaid shortly after the work began, and thereafter Wright proceeded and erected the building, under the instructions and supervision of the president of the company, as it seems, without any regard for the details of the contract. It appears, however, further, that the company accepted the work when completed, and paid for it, with the exception of twenty-two hundred and fifty dollars, which amount it retained, for the purpose of discharging claims for labor and material aggregating $1,368.75, of which amount the plaintiffs' claim formed a part.

It further appeared, that a few inches of one...