Compton v. Conrad
| Decision Date | 25 February 1919 |
| Citation | 209 S.W. 288,203 Mo.App. 211 |
| Parties | A. A. COMPTON, Appellant, v. CLARENCE CONRAD, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. Guy D. Kirby, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Hamlin & Hamlin for appellant.
Lee B Ewing for respondent.
The plaintiff brought a cause of action against the defendants to enforce a mechanic's lien on property, the legal title of which was in Clarence Conrad and on which a deed of trust had been given by him to secure the payment of $ 1500 to the Farm & Home Savings & Loan Association of Missouri (which will be termed throughout this opinion as the Loan Association), the other respondent. Judgment went in plaintiff's favor against Clarence Conrad, the Legal owner of the property, but the court held that the mortgage of the Loan Association would take priority over the mechanic's lien of the plaintiff against the property.
The petition charges that plaintiff was a contractor and that on the 23rd day of August, 1916, he made a contract with defendant Conrad to build a dwelling house on a lot in Roanoke Addition in Springfield, Missouri. That this contract was well known to the Loan Association, and was participated in by them. The consideration for building said house was $ 1094. It alleges that according to the contract he began the construction of the building, and after the same was in process of building both the defendants requested him to furnish additional material and labor on said building, which was accordingly done. The amount of the additions and improvements which were not contemplated by the first contract but were contemplated by the second contract amounted to $ 206.55. The plaintiff then alleges that the total value of the material and labor furnished upon and about the building at the special instance and request of the defendants was $ 1300.55, and that defendants had paid him on said amount $ 772.57, leaving a balance of $ 527.98, the amount sought to be enforced by mechanic's lien in this action. In addition to this, plaintiff's petition also contained an account of $ 13.75, which was an account purchased from a sub-contractor. This account appears to drop out of consideration in the record before us and is not included in the judgment rendered against Conrad and no disposition is made of it in the judgment rendered in the Loan Association's favor.
Conrad answered, alleging that the contract had not been fully complied with, and asked damages by way of a counterclaim. Judgment went against him and there is no appeal, hence his interest in the cause will be no further discussed except as it relates to the judgment in favor of the Loan Association.
The answer of the Loan Association alleged that Conrad was the owner of a lot in Springfield and that it loaned to him on the 19th day of August, 1916, $ 1500, and that on said date he executed a deed of trust security the payment of same. It further alleges that this money was loaned to Conrad for the purpose of making an improvement on the lot; and that on the 22nd day of August, 1916, Conrad as principal, and Compton, plaintiff, as surety, executed and delivered to the defendant Loan Association a bond conditioned that if the Loan Association would lend to Clarence Conrad $ 1500, secured by mortgage on the real estate, that they, and each of them, would fully protect and indemnify the Loan Association against any and all mechanic's or materialmen's liens of every kind and character arising out of the construction of said building and improvement; and that they, and each of them would fully pay off and discharge any and all of said liens and hold this defendant harmless by reason of the same. And that it was further agreed by the terms of the obligation that any alterations or changes in the plans and specifications of the proposed building or improvement should in no wise operate to release or discharge either Conrad or Compton. The answer further alleges that the full sum of $ 1500 had been paid to Conrad, and that the conditions contained in its deed of trust had been breached, and that its mortgage is a valid and subsisting lien against the premises; and alleges that by the execution of the indemnifying bond the plaintiff waived any right he might have to establish a mechanic's or material man's lien, and alleges that if he be permitted to establish a lien prior to its mortgage it would be damaged in the sum of $ 800.
Plaintiff, Compton, replied admitting the signing of the bond, but avers that while the legal title to the real estate described was in the name of Conrad, yet the Loan Association was to be a part owner of said property with Conrad. That the Loan Association purchased the lot for Conrad, participated in the making of the contract between Conrad and the plaintiff, directed and superintended in all matters in regard to the construction of the building, and that the extras mentioned in plaintiff's petition were made at the special instance and request of the defendant, Loan Association. That the bond executed was to protect the Loan Association only against claim of persons for labor and material furnished and used therein, but was not to protect it against a lien to be filed by the plaintiff. That the defendant Loan Association well knew the expenditures made by the plaintiff for labor and material, and well knew that plaintiff was relying upon the Loan Association for the payments due him for labor and material.
The facts of this case are about as follows: W. G. Burton is the District Agent for the defendant, Loan Association, and resides in the city of Springfield, Missouri, where said Company does business. On August, 1916, W. G. Burton District Agent, negotiated a sale between the owner of a lot in Roanoke Addition and Conrad, he agreeing with Conrad that his Company would purchase this lot for him, place the title in his name and take back a $ 1500 mortgage on the property to pay for the purchase price thereof and to pay for the building of an improvement thereon. This, in effect, was the agreement between Conrad and the Agent of the Loan Association. The deed to the lot was made to Conrad, and practically all, if not all, of the purchase price was paid by Burton out of the Loan Association funds. There is some little evidence that the lot cost $ 500; it is, however, not definitely shown that it did cost as much as $ 500, but in any event, it is admitted that Burton paid $ 495 of the Loan Association's money to the seller of the lot and had the legal title in the deed conveying the same placed in Conrad. Conrad then fell into negotiation with the plaintiff and agreed...
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