Cochran v. Johnston

• Decision Date: 04 March 1930
• Docket Number: No. 20866.,20866.
• Citation: 25 S.W.2d 130
• Court: Missouri Court of Appeals
• Parties: COCHRAN et al. v. JOHNSTON et al.

25 S.W.2d 130

COCHRAN et al. v. JOHNSTON et al.

No. 20866.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by William A. Cochran and others against Andrew Johnston, Minnie Johnston, and others. Judgment for plaintiffs, and the named defendants appeal.

Reversed and remanded.

R. E. Kleinschmidt, of Hillsboro, for appellants.

W. R. Carver, of Festus, for respondents.

SUTTON, C.

This is an action to establish and enforce a lien for $216.60, in favor of plaintiffs as materialmen, for lumber and other materials furnished in the erection of two buildings on a tract of 3.55 acres, situate in Jefferson county, on state highway No. 9. Defendants Andrew Johnston and Minnie Johnston are husband and wife, and are owners of said tract. The defendant Mrs. Wm. H. Figge is the widow of Wm. H. Figge, deceased, and defendants Mrs. Inez Burgdorf, Mrs. Dora Achter, Mrs. Carrie Burgdorf, Mrs. Wilhelmina Phillips, and Mrs. Lavon Moss, are his heirs.

Upon the trial, which was had before the court without a jury, the court gave judgment for plaintiffs for $216.60, and charged the amount as a lien upon said tract. From this judgment defendants Andrew Johnston and Minnie Johnston appeal.

Appellants urge here that the evidence is insufficient to support the judgment.

On March 1, 1927, the appellants leased the premises in question to Wm. H. Figge for a term of two years, at a monthly rental of $25. Under the terms of the lease, Figge had the privilege of erecting a building near the highway to be used as a lunch stand and for the purpose of dispensing soft drinks, with the privilege of removing the building so erected at the termination of the lease. Upon going into possession of the premises under the lease, Figge erected on the premises a building called a soft-drinks parlor, and also a brooder house. He purchased the materials used in these buildings from the respondents. It appears that appellants own the premises as tenants by the entirety. There is a dwelling house on the premises, which was occupied by Figge under the lease. Figge died January 6, 1928. Shortly afterwards the premises were vacated, and no further rents were paid. No administrator or executor was appointed. A lien account for $216.60 was filed by respondents for the lumber and other materials used in the erection of the soft-drink parlor and brooder house. It was admitted that the amount of the lien account was correct, and was the reasonable value of the lumber and other materials furnished, and that the account was filed in due time. There was no contract or agreement between appellants and Figge with respect to the erection of any building on the premises other than that contained in the lease.

There was no basis in the evidence for the charging of a lien upon the freehold. Sections 7216 and 7220, R. S. 1919; Weis & Jennett Marble Co. v. Gardiner, 198 Mo. App. 35, 198 S. W. 424; Ford v. Dixon, 171 Mo. App. 275, 157 S. W. 99; Philip Carey Co. v. Kellerman Contracting Co., 185 Mo. App. 346, 170 S. W. 449; Dierks & Sons Lumber Co. v. Morris, 170 Mo. App. 212, 156 S. W. 75; Ottumwa Iron Works v. Muir, 126 Mo. App. 582, 105 S. W. 29; Hengstenberg v. Hoyt, 109 Mo. App. 622, 83 S. W. 539; Kansas City Planning Mill Co. v. Brundage, 25 Mo. App. 268; Powell v. Reidinger (Mo. App.) 234 S. W. 850; Martin-Welch Hardware & Plumbing Co. v. Moor (Mo. App.) 16 S.W.(2d) 667.

Respondents insist that there is some evidence to show that, after Figge went into possession under the lease, Andrew Johnston authorized Figge to erect the buildings in question, and made Figge his agent for that purpose, so as to bind...