Center Creek Mining Co. v. Coyne

• Decision Date: 06 May 1912
• Parties: CENTER CREEK MINING CO. v. COYNE et al.
• Court: Missouri Court of Appeals

147 S.W. 148

CENTER CREEK MINING CO. v. COYNE et al.

Springfield Court of Appeals. Missouri.

May 6, 1912.

1. ACCORD AND SATISFACTION (§ 11)—SATISFACTION OF CLAIM—ACCEPTING ON CONDITION.

Cash and notes having been left with persons to be accepted in full payment of a claim for which they had a lien, or not at all, they, by appropriating the cash and crediting it on the account, were estopped to question acceptance of the proposition.

2. APPEAL AND ERROR (§ 1009)—REVIEW— WEIGHT OF TESTIMONY.

While the appellate court in an equity case may review the evidence and facts, yet, in determining the weight to be given the oral and conflicting testimony, deference will be given the opinion of the trial court thereon.

3. MECHANICS' LIENS (§ 208)—WAIVER OR SATISFACTION.

One may by any agreement or stipulation clearly showing intention waive or satisfy his mechanic's lien, and, having so done for a consideration, he may not revive the lien.

4. MECHANICS' LIENS (§ 157)—FILING ACCOUNT —GIVING CREDITS.

Under Rev. St. 1909, § 8217, requiring one claiming a mechanic's lien to file a just and true account of the demands due him after all just credits have been given, his lien is destroyed by intentional failure to give credits therein.

5. CHATTEL MORTGAGES (§ 198)—DEFECTIVE ACKNOWLEDGMENT — MORTGAGEE TAKING POSSESSION.

Invalidity of a chattel mortgage, which as against others than the parties thereto exists because of the certificate of acknowledgment not making the statements required by Rev. St. 1909, § 2799, in case of mortgage by a corporation, is cured by the mortgagee taking actual possession under said mortgage.

6. FIXTURES (§ 33)—PERSONALTY AND REALTY —CHANGE OF FORM.

While as between lessor and lessee, under a lease providing that all improvements placed on the premises by the lessee should belong to it, and might be removed by it at expiration or forfeiture of the lease, such improvements were personalty, yet, the lessor having by agreement with the lessee taken possession of the premises and such improvements, the improvements became a part of the real estate.

7. QUIETING TITLE (§ 7)—REMOVING CLOUD —FACTS RESTING IN PAROL.

Suit to remove as a cloud on title a lien declared by a judgment will lie; the facts showing its invalidity resting in parol.

8. QUIETING TITLE (§ 4)—ADEQUATE REMEDY AT LAW.

It is no objection to suit to remove as a cloud a mechanic's lien judgment, under which levy and sale is threatened, and invalidity of which rests in parol, that there is a remedy at law.

9. JUDGMENT (§ 707)—MECHANICS' LIENS— PROCEEDINGS TO ENFORCE—PERSONS BOUND.

By provision of Rev. St. 1909, § 8221, others than the parties to the contract under which a mechanic's lien is claimed, though interested in the property, not being made parties to the suit to enforce the lien, are not bound by the proceedings.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by the Center Creek Mining Company against T. F. Coyne and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Frank L. Forlow, of Webb City, and H. S. Miller, of Joplin, for appellants. Bates & Stewart, of Webb City, Norman A. Cox, and Hugh Dabbs, of Joplin, for respondent.

NIXON, P. J.

This was an action in equity instituted by the Center Creek Mining Company to set aside and cancel a mechanic's lien judgment obtained by the defendants, a copartnership, against the Good Shepherd Mining Company, a corporation, and restrain the collection of the same; the plaintiff claiming that said judgment was invalid and that it declared a lien and cast a cloud upon plaintiff's title. A temporary injunction was issued restraining the collection of the judgment, and on final hearing was made perpetual. Defendants have appealed.

The evidence in the case tended to support the allegations of the petition, which is substantially as follows (formal parts omitted):

"Plaintiff for its amended petition and cause of action states that at all times hereinafter mentioned it was, and is now, a corporation, organized and doing business under the laws of the state of Missouri; that during said period defendants, T. F. Coyne, Ed. Foster, and W. W. Davis, were, and still are, copartners engaged in the retail lumber business in Webb City, Missouri, under the name and style of the Coyne Lumber Company; that the hereinafter mentioned Good Shepherd Mining Company was also during said period and is now a corporation organized and existing under the laws of the state of Missouri; that the defendant Arch McDonald has been for more than one year next preceding the date of filing this petition the duly elected, qualified and acting sheriff of Jasper county, Missouri.

"Plaintiff states that on or about the fifteenth day of January, 1908, the said Good Shepherd Mining Company entered into a contract with the plaintiff whereby it leased to the said Good Shepherd Mining Company for a period of years for mining purposes all of lots numbered 84, 85, 86, 87, 88, 97, 98, 99, 100, and fractional lots numbered 101, 102, 103 and 104, respectively, of the Center Creek Mining Company's land, all located in the southwest quarter of the northwest quarter of section seventeen (17), township twenty-eight (28), range thirty-two (32), Jasper county, Missouri; that said contract among other things provided that said Good Shepherd Mining Company would own and might remove therefrom all fixtures and improvements placed by it on the said lots, at the expiration or forfeiture of said lease; that under the terms and provisions of said lease said Good Shepherd Mining Company constructed a mining concentrating plant, including main buildings, derrick, hoppers, machinery, tramways, office buildings, etc., on one or more of the said lots; plaintiff further states that after the completion of the said mining plant and on or about the first day of August, 1908, the Good Shepherd Mining Company could not proceed with its operations for the want of funds; that in the building and construction of said mining plant, building, machinery and improvements, it had incurred a large amount of indebtedness, its creditors being the defendant Coyne Lumber Company, a partnership composed as aforesaid, the Webb City Foundry & Machinery Company, Manley & Landreth of Joplin, Missouri, and Putman and Bryant of Webb City, Missouri. That at said times the claims of said creditors were for materials used for the improvements on said lease, the said creditors being entitled under the law to enforce their claims under the mechanics' lien laws for said improvements.

"Plaintiff states that on the tenth day of August, 1908, the Good Shepherd Mining Company applied to it for a loan with which to discharge its then existing indebtedness to the aforesaid creditors and to create a fund with which to continue mining operations. Plaintiff states that through its secretary and general manager it agreed with the Good Shepherd Mining Company to make a loan provided all lienable claims and debts existing and owing by said company at the time be paid off and discharged so that plaintiff's loan could be secured by a first mortgage on said mill and improvements, concentrating plant and machinery aforesaid; that thereupon the said Good Shepherd Mining Company stated to plaintiff that it could arrange with said creditors so that each would receive a part payment of their several claims in cash and take the individual note of the Good Shepherd Mining Company, with the guaranty of the president of said company, in full satisfaction and discharge of said indebtedness, so that the same would no longer be a lienable claim against said property.

"Plaintiff further states that with a view of carrying out said arrangement A. L. Shepard, president of the Good Shepherd Mining Company, went to the Coyne Lumber Company to ascertain the amount of the indebtedness then owing it by the Good Shepherd Mining Company, and that the Coyne Lumber Company, through T. F. Coyne, a member of said partnership, rendered to the said Shepard for the plaintiff a statement of its indebtedness as follows, to wit: `Webb City, Mo., July 31, 1908. The balance due to date on Good Shepherd account is twenty-five hundred ($2,500.00) dollars. Coyne Lumber Company, by T. F. Coyne.'

"Plaintiff further states that for the purpose of carrying out said arrangement the said Good Shepherd Mining Company through its said president ascertained the indebtedness of the other above-named companies. * * *

"Plaintiff further states that the Coyne Lumber Company, being a partnership composed of the members hereinbefore set out, through said W. W. Davis, a member of said firm then in charge of its office and place of business, agreed with the plaintiff and the Good Shepherd Mining Company that if fifteen hundred dollars in cash would be paid upon its account at that time, to wit, August ___, 1908, it would accept two promissory notes of said company for five hundred dollars each, guaranteed by A. L. Shepard as the president thereof, in full satisfaction, payment and discharge of its claim against the Good Shepherd Mining Company, the same to be written across the face of said notes, if the plaintiff would make said loan to the Good Shepherd Mining Company, so as to enable it to pay said amount. * * * Plaintiff states that with full knowledge of the facts above set forth the said W. W. Davis, agent and member of said firm, received said payment of fifteen hundred dollars in cash, and accepted the two promissory notes of the Good Shepherd Mining Company at said time for five hundred dollars each, guaranteed by A. L. Shepard as president thereof, in full satisfaction, payment and discharge of said indebtedness owing said partnership by the Good Shepherd Mining Company. Plaintiff states that a similar arrangement was made with the other creditors named above.

"Plaintiff states that, relying upon said arrangement, agreement, understanding and facts as aforesaid, it did loan to...