Deitz v. Leete

• Decision Date: 09 January 1888
• Parties: JAMES N. DEITZ, Plaintiff in Error, v. HUGH LEETE AND J. W. ENGLISH, Defendants in Error.
• Court: Kansas Court of Appeals

28 Mo.App. 540

JAMES N. DEITZ, Plaintiff in Error, v. HUGH LEETE AND J. W. ENGLISH, Defendants in Error.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

ERROR to Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This is an action to enforce a mechanic's lien, and to recover the contract money. The defendant, Leete, was the contractor and the defendant, English, was part owner of the building on which the lien is sought to be enforced. The plaintiff furnished material for the erection of this building, as a subcontractor under Leete. Having complied with the law authorizing him to file a mechanic's lien, this suit is to enforce the same. As the issue here is between the plaintiff and English, it is only necessary to set out English's answer, which is, substantially, as follows:

(1) Denies every allegation of the petition not in his answer admitted. (2) States that at all times in the petition mentioned he and C. C. English owned the real estate described therein, and were doing business as English Brothers, and that as English Brothers and a firm they erected said building thereon; that to that end they contracted, in writing, with Hugh Leete, to do all the work and to furnish all materials for foundations and cellars, and retaining walls and piers, all to be done strictly according to plans and specifications attached to said contract; that Leete was to complete his work by June 1, 1886, for $3,104.66; that, for failure to complete by that date, Leete was to pay English Brothers twenty-five dollars per day thereafter till finished, as liquidated damages; that Leete was to get twenty-five dollars extra for each day remaining between finishing his work and June 1, 1886; that Leete was to be paid eighty-five per cent. in value of the work he did once every two weeks, and this only on production of the architect's certificate, stating the amount due for materials and work, and the entire balance when his whole work was finished; that alterations were to be allowed, and the time of completion and price modified in proportion to the extent of such alterations. And to secure Leete's performance of said work, English Brothers obtained from him an obligation in writing, wherein said Leete, J. N. Deitz, H Peterson, and Robert Struck, on April 21, 1886, agreed and bound themselves to pay said English Brothers the sum of three thousand dollars, conditioned to be void " if said Leete should, in all respects, well and truly keep and perform, upon his part, the said contract with said English Brothers, in strict accordance with the terms thereof, and should further indemnify and save harmless the said English Brothers from any and all loss, damage, or expense to which they, the said English Brothers, should or may be subjected by reason of any failure of said Leete in the premises," otherwise to be of force. Said Leete broke the terms of said contract with him, failed to complete the said work in the specified time, or at all, and abandoned the same about July 4, 1886, and refused to finish it; and said Leete failed to remove the earth from the cellar, and failed to point much of the stone-work, to the damage of said English Brothers in the sum of seventy-five dollars. The contract price was $3,104.60, and the value of the additional work was $690.70 a total of $3,795.30, while to protect said premises from mechanics' liens, said English Brothers have paid out for said work $3,945.59, and thereby plaintiff owes them $156.29 and is further indebted to them on said bond for unfinished work, seventy-five dollars, and for delay in finishing said work the sum of seven hundred and fifty dollars; that the total of plaintiff's indebtedness on said bond is $975.24, and that plaintiff is held therefor; and " specifically agreed to protect said English Brothers from loss or damage on said contract as aforesaid, and is, therefore, entitled to claim nothing from defendants in this action."

The reply tendered the general issue.

The plaintiff's evidence tended to establish his claim against the contractor, Leete, and the fact of his having complied with the provisions of the statute respecting the filing of liens by subcontractors. The defendant read in evidence, against the objection of plaintiff, the written contract between plaintiff and Leete for the erection of the building, which contract was under seal; also, the bond executed by Leete and plaintiff to English, as stated in the answer. This bond was also under seal, and was made contemporaneously with the contract aforesaid. The defendants' evidence also tended to support the allegations of the answer as to the default of Leete on his contract, and the defendants' claim against Leete for such default.

The court, in substance, instructed the jury that, if they found the contract, as stated, that the work done and materials furnished should be according to the terms of the contract, read in evidence, and that plaintiff obligated himself to save harmless the defendant, English, from any and all damages by reason of the failure of Leete to perform the contract on his part, and if they further found that Leete had failed to pay for the labor and materials called for in the contract, and the claim of plaintiff herein is a part of such materials and labor, or either, they should find for defendant, provided the jury further found that defendant, English, had already paid the contract price and the value of the work done and materials furnished.

The jury returned a verdict for the plaintiff against defendant, Leete, for the sum of $525.95, and found the issues for the defendant, English.

Leete abided the result of the trial. Plaintiff prosecutes this writ of error.

MILTON CAMPBELL, for the plaintiff in error.

I. It was error to admit in evidence the building contract between English Brothers and Leete; and also error to so admit the bond of indemnity given by Leete to English Brothers. Both are irrelevant and immaterial to the question of a lien on the property. No counter-claim is permitted against a lien. Rev. Stat., secs. 3172, 3176, 3185, 3191, and 3522.

II. The instruction given for defendants was full of errors and very misleading. (1) It submits the construction of the contract of indemnity to the jury, asking the jury whether, by that contract, Deitz contracted that Leete's work should be done according to Leete's contract, and whether Deitz thereby engaged to save English Brothers harmless. This is for the court to say. Gas Light Co. v. St. Louis, 46 Mo. 128; Michael v. Ins. Co., 17 Mo. 23. (2) That bond was simply an agreement of Deitz and others to pay English Brothers three thousand dollars, if Leete failed in his contract, and if Leete failed to indemnify and hold English Brothers harmless. Defendant, English, says this in his answer. Hence the instruction was misleading. (3) And said instruction erroneously ordered a finding against the lien on said bond, in case plaintiff's demand against Leete was for materials furnished and used in the building of J. W. English. The very ground of the lien under section 3172, Revised Statutes, is the reason assigned for its defeat. This bond is not an estoppel. Hartman v. Berry, 56 Mo. 487; Haden v. Wulfing, 19 Mo.App. 354. (4) Nor does it become an estoppel because English has " improvidently paid" to Leete all the money owing to him under the building contract. No transactions between English and Leete can repeal article 1, chapter 47, Revised Statutes, nor affect plaintiff's rights thereunder. Their acts fail to make said bond of indemnity a defeasance to plaintiff's lien. Garrett v. Berry 3 Mo.App. 197; Atwood v. Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462; Bond v. Worley, 26 Mo. 263; Henry v. Hinds, 18 Mo.App. 497. (5) The answer shows that English Brothers were entitled to full information as to the amount due for materials before Leete could get a dollar on the work. It was their duty to see that the material was paid for. De Witt v. Smith, 63 Mo. 263. (6) And finally the lien depends on these facts only: (a ) That Leete owed Deitz for material as stated; (b ) that Deitz complied with the statute in asserting his rights; (c ) and that English had not honestly exhausted the sum due Leete in paying for material and work on the building. All these essentials are ignored in this instruction, and an offset is allowed against a lien; the law in Deitz's favor is nullified by the state of account between Leete and English, and the fact that Deitz and others agreed, on contingencies, to pay English Brothers three thousand dollars. This mode of repealing a statute is not mentioned in the books.

WARNER, DEAN & HAGERMAN, for the defendant in error.

I. The owner of the land in a suit such as this can plead anything which legally or equitably defeats the lien. Phillips on Mech. Liens [2 Ed.] sec. 423; Rev. Stat., sec. 3179. Such defence is also allowable to avoid circuity of action. Phillips on Mech. Liens [2 Ed.] sec. 424; Winder v. Caldwell, 14 How. (U. S.) 434; Withers v. Green, 9 How. (U. S.) 213; Van Buren v. Digges, 11 How. (U. S.) 461; Trustees v. Heise, 44 Md. 455.

II. The bond of plaintiff operated as a waiver of the right to enforce a lien against the building when the original contractor could not. The privilege conferred by statute of a mechanic's lien may be waived by contract to that effect. Phil. Mech. Liens (2 Ed.) sec. 272. Waiver may be by implication as well as by an express agreement, and may be inferred from the conduct of the parties. Phil. Mech. Liens (2 Ed.) sec. 273, where it said: " What constitutes a waiver must be determined from the circumstances of each particular case, it being...