Early v. Smallwood

• Decision Date: 31 July 1923
• Docket Number: No. 22453.,22453.
• Citation: 302 Mo. 92,256 S.W. 1053
• Parties: EARLY v. SMALLWOOD et al.
• Court: Missouri Supreme Court

256 S.W. 1053

302 Mo. 92

EARLY v. SMALLWOOD et al.

No. 22453.

Supreme Court of Missouri, Division No. 2.

July 31, 1923.

Rehearing Denied December 31, 1923.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

Action by T. R. Early against Yeweil G. Smallwood and others. From a judgment For plaintiff and defendants other than the named defendant, the latter appeals. Affirmed.

J. G. Hutchison, J. D. Brown, and E. C. Hall, all of Kansas City, for appellant. James M. Johnson, A. N. Adams, Daniel V. Howell, Donald W. Johnson, and Davis & Woodruff, all of Kansas City, for respondent.

SMALL, C.

I, Appeal from the circuit court of Jackson county. This is a suit in equity to foreclose a mechanic's lien on four lots of land and buildings thereon in Kansas City.

The petition of plaintiff was filed October 12, 1918. It alleged that defendant Yewell G. Smallwood was the owner of the property and had purchased lumber and building material from plaintiff of the value of $2,913.58, which was used in the construction of the buildings, and not paid for, and for which plaintiff has filed his mechanic's lien. It was further alleged that the defendant People's Trust Company held deeds of trust upon the property, and defendant Palermo claimed some interest in the property; that numerous other parties, naming them, also claimed mechanics' liens on said property. The prayer is for the foreclosure of plaintiff's mechanic's lien, and that the real estate and buildings be sold and the proceeds distributed according to the rights of all the parties interested, as determined by the decree of the court.

October 22, 1918, defendant Smallwood appeared in person and by his attorney, Henry L. Jost, and by consent of all parties J. M. Johnson and D. V. Howell were appointed receivers, who took charge of and completed and rented the buildings, under the orders of the court, and issued certain receivers' certificates in order to complete such buildings.

Defendant Palermo, filed intervening petition, claiming a lien on said property amounting to $6,000 and interest, as due for purchase money thereof from defendant Smallwood, and for foreclosure of his vendor's lien, subject to the lien of the People's Trust Company. To this intervening petition defendant Smallwood filed answer by his attorney, W. E. Orndorff, to which said Palermo filed reply. Defendant Coen Building Material Company also filed intervening petition to enforce its mechanic's lien against said property for materials supplied to contractors used in the construction of said buildings. To this petition defendant Smallwood filed joint answer, general denial, with the receivers by their attorneys, J. M. Johnson, D. V. Howell, and J. D. Hill. Defendant People's Trust Company also filed intervening petition to forcelose its deeds of trust, to which it does not appear any answer was filed.

At the close of all the testimony said defendant trust company filed an amended intervening petition "to conform to the proof," to which defendant Smallwood asked to file an answer, but was refused by the court.

At the trial of the case, December 29, 1919, the following stipulation was read in evidence:

"Stipulation.

"It is hereby stipulated and agreed between the parties to the above-entitled cause that judgments shall be entered in favor of the mechanic's lien defendants and interveners whose names are signed hereto in the amounts set opposite their respective names, and that such judgments shall bear interest at the rate of 6 per cent, per annum.

"It is further stipulated that judgments shall be recorded sustaining and foreclosing the mechanics' liens filed by said respective parties, such judgments to be in the usual form and to contain the usual provisions, and to be rendered either upon the signing of this agreement by all the mechanic's lien claimants or upon an adjudication by the court of liens of those claimants who do not sign.

"It is further stipulated and agreed that the various mechanic's lien claimants whose names are signed hereto will accept in full payment of their respective judgments the respective amounts set forth in the column headed `Satisfaction' provided such payment be made within 30 days from the date hereof. Said respective lien claimants further agree to waive all costs heretofore paid or advanced by them upon the satisfaction of their judgments, as above specified. Said liens are to be adjudged inferior to the receivers' certificates, and superior to the liens of the deed of trust of defendant People's Trust Company.

"This stipulation is to become effective when signed by all mechanic's lien claimants who sign the same and the defendants, Frank Palermo, Yewell G. Smallwood, and People's Trust Company.

                                                          Amount of      Satis
                Mechanic's Lien Claimants.               Judgment,      faction
                Lyle Rock Co., by Geo. B. Smith ..       $ 189 00      $ 160 00
                John Pannettere, by Geo. B. Smith          263 25        233 75
                Geo. B. Potvin Wall Paper Co., by
                W. W. Green, Atty....................       53 13          45 20
                Forrester Bros. Stove Co., by Wilkinson
                & Wilkinson, Attys ...................     108 00          91 00
                Rossner Lighting Company, by
                Clyde Wilcox, his atty ................     62 00          44 20
                H. N. Duck, by Strother & Campbell
                .......................................    252 60         214 71
                Security Stove Mfg. Co., by Hutton
                Avis, Nourse & Bell ...................    462 70         393 30
                T. R. Early, by Mertsheimer &amp
                O'Donnell..............................   2,913 52       2,476 49
                Fred Schmeltz Hwd. Co., by Jay
                L. Oldham & L. D. Tolle................     566 44         368 25
                W. L. Van Bibber, by Joseph
                Johnson ...............................     216 00         183 60
                Letton Paint & Varnish Co., by
                Joseph Johnson, its atty ..............     149 79         112 84
                W. F. Coen and A. S. Coen, copartners
                as Coen Building Material
                Co., by Davis & Woodruff
                Attys..................................     846 71         719 90
                U. S. Engineering Company, by
                Guthrie, Conrad & Durham ..............      425 00        361 25
                Charles W. Bartlett and C. S
                Todd, partners as Kaw River
                Sand Co., by Bellemere & Langsdale
                .......................................       78 50         66 73
                Charles W. Bartlett & C. S. Todd
                partners as Kaw River Sand
                Co., by Bellmore & Langsdale,
                Attys..................................       80 75         68 64
                James P. Marcy, by John M. Linger,
                his atty...............................        50 00        42 50
                Badger Lumber Co., by H. L
                Hassler................................       193 75       143 31
                

Frank Palermo, by J. M. Johnson, his attorney. Wm. J. Coleman, by J. M. Johnson, his attorney. People's Trust Company, by Daniel V. Howell, its attorney of record.

Wilson D. Wood, by Daniel V. Howell, his attorney of record.

"The foregoing liens will not be contested in this court by defendant, Yewell G. Smallwood, except the Coen Building Material Company's account. W. Edgar Orndorff, Atty. for Yewell G. Smallwood and W. H. Smallwood."

There was also evidence introduced tending to support the cross-bills or intervening petitions of defendants, People's Trust Company, Frank Palermo, and Coen Building Material Company.

There was judgment for the plaintiff and for all mechanic's lien claimants for the sums stated in said stipulation, also foreclosing the deeds of trust and liens of defendants People's Trust Company and Frank Palermo as prayed in their intervening petitions, also in their favor for certain receivers' certificates held by them; also judgment foreclosing mechanic's lien in favor of Coen Company, as claimed by it. Other pertinent facts will be noticed in the course of the opinion. After unsuccessfully filing motion for new trial, defendant Smallwood appealed to this court.

II. The only questions raised by appellant relate to the judgments in favor of the plaintiff and defendants Coen Building Material Company, Frank Palermo, and People's Trust Company, which we will consider in the order named.

III. As to plaintiff's claim: It is contended, that the petition of plaintiff, Early, does not state facts sufficient to constitute a cause of action, because it does not state that the plaintiff filed with the clerk of the circuit court within six months after the "indebtedness" claimed accrued a just and true account of the demand due him after all just credits were given. It is said that the petition simply states that such account was filed "within six months from the date said account accrued," and not within six months from the date the "indebtedness" accrued, as required by the statute. We think this criticism is unsound. The allegations of the petition are that the "last delivery" of lumber and material was on the 21st day of May, 1918, when "the amount claimed accrued and became due," and that on October 10, 1918, and within six months from the date said "account" accrued, a just and true account of "the indebtedness," etc., was filed with the clerk of the circuit court.

We hold, the petition not subject to the objection made thereto.

IV. It is also urged that the stipulation signed by the parties does not provide that the plaintiff Early's claim for a mechanic's lien shall be sustained, but only that the lien of defendants or interveners claiming mechanics' liens may be sustained. This contention is erroneous. It is true, the first paragraph of the stipulation simply states that judgments for mechanics' liens of defendants and interveners shall be entered for the amount set opposite their names. But the two subsequent paragraphs are not limited to the liens claimed by defendants and interveners but refer to the mechanics' liens filed by "said respective parties" and "the various mechanic's lien claimants," whose names are signed to the stipulation, and the plaintiff's name, T. R. Early, is signed to the stipulation, and the amount of the judgment set opposite...