Carroll Contracting Company, a Corp. v. Newsome
| Decision Date | 06 November 1918 |
| Parties | CARROLL CONTRACTING COMPANY, a Corporation, Respondent, v. W. D. NEWSOME, Defendant, MERCHANTS & CONSUMERS MARKET HOUSE ASSOCIATION, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted October 10, 1918.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Glendy B. Arnold, Judge.
AFFIRMED (as to Defendant Newsome).
REVERSED AND REMANDED (as to Defendant Merchants & Consumers Market House Association).
AFFIRMED (as to Defendant Newsome). REVERSED AND REMANDED (as to Defendant Merchants & Consumers Market House Association).
Robert W. Hall and Charles A. Houts, for appellant, Merchants & Consumers Market House Association.
The term "improvement" as used in section 8212, R. S 1909, is synonymous with "building" and does not include engines and boilers. Collins & Holliday v Mott, 45 Mo. 100, l. c. 102. An improvement is something attached to the property and not the property being turned over or moved, but must be some absolute physical attachment to, and something which fastens itself to and becomes a part of the land, thereby enhancing the value of the property. Richardson v. Koch et al., 81 Mo. 264; Springfield Fdry & Machine Co. v. Cole et al., 130 Mo. 1. In the case of Holzhour v. Meer et al., 59 Mo. 434, l. c. 437, it is held: See the cases of Bruns v Braun, 35 Mo.App. 347. Reilly v. Hudson, 62 Mo. 385; Allen v. Mining Co., 73 Mo. 692." In the case of Henry v. Plitt, 84 Mo. 237, it was held that a lien would not attach for fences and walks unless constructed as pertaining to the building and must be included in one entire contract. (This law has since been changed by special amendment.) Where a mechanic has so intermingled his lien claim with non-lien items that the exact amount for which he is entitled to a lien cannot be readily ascertained by inspection of the claim, the whole lien must fail, whether the error was intentional or unintentional. Carthage Limestone Co. v. Methodist Church, 156 Mo.App. 671, l. c. 673.
J. D. Johnson, Amici Curiae.
There can be no lien judgment under the pleading. The petition alleges that the owner, the Market Association, contracted for the work with W. D. Newsome and that Newsome in turn contracted with plaintiff. Plaintiff claims as subcontractor. But the evidence shows that there was no contractual relation whatever between the Market Association and Newsome. Plaintiff is not a subcontractor and therefore could not recover on this petition, even if the evidence disclosed a right to recover upon some other cause of action not pleaded. Cole v. Armour, 154 Mo. 333, 350; Bagnell Timber Co. v. M. K. & T. R. R. Co., 180 Mo. 420, 460. (2) On the facts the owner never contracted; hence there is no lien. But plaintiff is not entitled to a lien under the facts of this case under any pleading that could be drawn. Newsome merely had a license from the Market Association to excavate for a limited time, at his own cost, with express exclusion of all rights in the realty and upon bond to protect the Market Association. Newsome could act under that license, or not, as he saw fit. The Market Association could be bound by a lien only if it was made obligatory on Newsome to excavate. Hence there is no lien against the Market Association. Lumber Co. v. Harris, 131 Mo.App. 94; O'Leary v. Roe, 45 Mo.App. 567; Hardware Co. v. Churchill, 126 Mo.App. 462; Ward v. Nolde, 259 Mo. 285; Carey Co. v. Construction Co., 185 Mo.App. 346; Weis v. Gardner, 198 Mo.App. 35. (3) Not only is the document under which Newsome acted a license, and nothing more, but it also conclusively appears from that instrument, in harmony with everything disclosed in the evidence, that the Market Association disavowed all connection with what Newsome might see fit to do. The possibility that Newsome was in any sense an agent of the Market Company is excluded. This should lead to a simple reversal of the judgment. No purpose would be served in remanding the case. (4) There was no building or improvement, hence there is no lien. All that was ever done was to remove part of the soil. So far from being an "im-inprovement," it was the reverse. A lien cannot be taken against land alone. The lien can originate only in some building or improvement. Holzbauer v. Meier, 59 Mo. 434; Schulenburg v. M. C. & N.W. R. R., 67 Mo. 444; Shinn v. Heimburger, 60 Mo.App. 174. (5) A suggestion that a building, to follow on this excavation, was contemplated, would not affect the foregoing point. Even if we admit contemplation of a future building, the fact remains that no lienable work was ever done on this realty, and the doctrine is that no lien can come into existence until there has been some actual building. (6) Moreover, if there was an intention, on the part of some one, to build on this realty, not a thing toward building has even been done. No contract toward that end was ever entered into by any one. Whoever had such intention could abandon it at any time without incurring any obligation to any one, as was actually done in this case. A mere intention, never put into a form involving an obligation on some one, cannot be the basis of a lien.
Connett & Currie for respondent.
(1) The mechanics' lien law is now construed liberally by our appellate courts on the ground that it is a highly remedial piece of legislation, and should receive a most liberal construction. Sash & Door Works v. Shade, 137 Mo.App. 20, l. c. 23; Cornice & Roofing Company v. Trust Company, 146 Mo.App. 36, li c. 49. (2) Excavations and fundations for a building are within the lien law, even though the building is not completed, and the right to a lien for work done in the construction of a building is not dependent upon whether the building is actually completed but upon whether the construction is commenced. If this is done and lienable work is done in aid thereof, the right of lien thereby becomes perfect and cannot thereafter be defeated by any act of the proprietor. 27 Cyc, page 36, paragraph 6; 27 Cyc, page 41, paragraph 16; Helm v. Chapman, 66 Cal. 291; Baker v. Waldron, 92 Me. 17; Carew v. Stubb, 155 Mass. 549; Sumerville v. Walker, 168 Mass. 388; Scott v. Goldinghorst, 123 Ind. l. c. 270; McCrystal v. Cochran et al., 147 Pa. State 225; Andrews v. St. Louis Tunnel Railroad Co. et al., 16 Mo.App. 229, l. c. 303; Rapauno Chemical Co. v. Greenfield & Northern R. R. Co., 59 Mo.App. 6, l. c. 10, 11 and 12; Darlington Lumber Co. v. Westlake Construction Co., 161 Mo.App. 723; Bruns v. Braun, 35 Mo. Ap. 337. (3) The statute requires that the account should be a just and true statement of the real transactions between the parties and if the contract provides for a lump price, then it is proper that the lien should set out the lump price and should not attempt to arbitrarily apportion among the various items the different prices which go to make up the lump sum of the total aggregate, and this is true even when the lien is sought to be established by a sub-contractor. Press Brick Co. v. Construction Co., 177 Mo.App. 573, l. c. 581; Buchanan v. Cole, Mo.App. 57, page 11, l. c. 18, 19; McDermott v. Class, 104 Mo. 14, l. c. 23 and 24; Miller v. Whitelaw, 28, Mo.App. 639, l. c. 641-642; Grace v. Nesbit, 109 Mo. 9, l. c. 17, 18 and 19; Deardorff v. Roy, 50 Mo.App. 70; Dallas v. Braun, 60 Mo.App. 493; Sossman v. Condon, 57 Mo. 25; Mitchell Planing Mill Co., v. Allison, 138 Mo. 50. (4) The lien was properly admitted and does not contain anything which makes the account nonlienable. Lumber Co. v. Pottinger, 165 Mo.App. 442, l. c. 449-450; Machinery Co. v. Roney, 185 Mo.App. 474, l. c. 479-80. (5) The appellant's point that the Court erred in refusing to file in writing its finding of fact and declaration of law, is not well taken because the appellant submitted to the court certain declarations of law and asked the court to give them, which the court refused to do on the ground that they did not state the law properly, and having asked these declarations of law, the appellant was not entitled to have the trial court also make its finding of facts. Furthermore, the appellant did not request in writing, as required by statute, that the court make written finding of facts separate from its conclusions of law. Besides, there is no conflict in facts in this case and therefore it was not necessary for the court to make any finding of fact. Kostuba v. Miller, 137 Mo. 161; German-American Insurance Co. v. Tribble, 86 Mo.App. 546. (6) The point which the amicus curiae attempts to raise that there was not a contract between Newsome and respondent cannot be raised in this court because it was not raised by the appellant or anyone in the trial court. In re Birmingham Drainage District, 266 Mo. 60, l. c. 67; Kirksville v. Ferguson, 262 Mo. 661, l. c. 670; Donijanovic v. Hartman, 169 Mo.App. 204, l. c. 210-211; Allen v. Lumber Co., 171 Mo.App. 492, l. c. 506.
Plaintiff, respondent here, brought his action against one Newsome for certain excavation work done in the cellar or basement of a building proposed to be erected in the city of St. Louis, and to establish a mechanic's lien against the owner of the land, Merchants & Consumers Market House Association, the latter hereafter referred to as the Market House Association. His petition is in two...
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