Edward McLundie & Co. v. Mount

• Decision Date: 30 November 1909
• Citation: 123 S.W. 966
• Parties: EDWARD McLUNDIE & CO. v. MOUNT.
• Court: Missouri Court of Appeals

123 S.W. 966

EDWARD McLUNDIE & CO. v. MOUNT.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. MECHANICS' LIENS (§ 120) — NOTICE OF LIEN—SUFFICIENCY.

Under Rev. St. 1899, § 4221 (Ann. St. 1906, p. 2311), providing for notice to the owners of the building before the filing of a lien account, notice by a subcontractor given to the person who acted as the agent of the owners of the property when the original and subcontracts were made is sufficient.

2. MECHANICS' LIENS (§ 263)—ENFORCEMENT —PARTIES.

Under Rev. St. 1899, § 4211 (Ann. St. 1906, p. 2305), providing that the parties to the contract and all other persons interested in the property may be made parties, the original contractor is a necessary party defendant in a suit by a subcontractor to enforce a mechanic's lien, but no lien may be declared against the premises unless either the owner at the time of the making of the contract or the subsequent owner is made defendant.

3. MECHANICS' LIENS (§ 263) — JUDGMENT (§ 682)—ENFORCEMENT—PARTIES.

One acquiring title to premises after a mechanic's lien has attached is not a necessary party to an action on the lien, but he is not bound by the judgment unless he is a party.

4. MECHANICS' LIENS (§ 263)—ENFORCEMENT —PARTIES.

One conveying all his title to the premises after a mechanic's lien has attached is not a necessary party, but the suit may be brought against the purchaser alone.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Edward McLundie & Co. against Joseph L. Mount and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

Conrad Paeben and J. D. Dempsey, for appellant. W. G. Carpenter, for respondent.

GOODE, J.

Respondent does plumbing work and installs plumbing apparatus in buildings. In the year 1906, T. L. Houser, one of the original defendants in the case, and respondent entered into a contract by which respondent undertook to do the plumbing work and furnish plumbing materials for a building on Arco avenue in the city of St. Louis between Kingshighway and Taylor avenues. Houser was the contractor to erect the entire building. His contract was in writing, dated April 25, 1906, and was executed by himself on one side and Ida Mount, wife of Joseph Mount, appellant, and Gussie and Mamie Mount, sisters of appellant, on the other. The course of the title was shown by deeds put in evidence, and ran thus: On January 5, 1903, Joseph L. Mount and Ida Mount conveyed the lots to Joseph M. Griffin. On July 5, 1906, Joseph M. Griffin conveyed them to Ida, Gussie, and Mamie Mount. On August 3, 1906, Ida, Gussie, and Mamie Mount conveyed them again to Joseph M. Griffin, and on the same day Griffin conveyed them to appellant Joseph L. Mount. It will be perceived that when Houser contracted with the three Mount women to erect the building, the title to the premises stood in Jos. M. Griffin, but it was transferred by him to said women on July 5, 1906, during the progress of the work. Appellant negotiated the contract with Houser, but the latter testified he did not know the women were the owners of the property before the contract was signed, or know they were the parties named in the contract. In fact Mount acted for the women throughout the work and does yet, he says. Respondent's contract with Houser was entered into May 1, 1906, and the plumbing work began pretty soon and continued through July, August, and perhaps into October. Regarding Griffin's title, he (Griffin) testified he had had money transactions with Mount, and the deed to him (Griffin), dated January 5, 1903, was executed by Mount and wife to pay a debt Mount owed him. He testified the property was his own and he could do with it as he chose. As we gather from Griffin's testimony, he conveyed the property to Ida Mount, wife of appellant, and appellant's two sisters, on July 5, 1906, by appellant's direction and upon payment by them of $5,000. Regarding the two subsequent conveyances of August 3, 1906, he said he did not remember the reasons for which the property was conveyed to him by the three Mount women and then conveyed by him to appellant. Appellant testified that when the contract for the erection of the house and the subcontract for the plumbing were made, he had no financial interest in the property; that he originally conveyed the property to Griffin in payment of a debt, and, when it was conveyed by Griffin to the three Mount women, they furnished the consideration, having received it from their father's estate; that is was also their money which went into the house. Plaintiff's bill for work and material not having been paid in full, he filed a lien for the balance due — $300.65. The demand fell due December 8, 1906, and the lien was filed within four months, or on April 2, 1907. In the lien statement respondent described T. L. Houser as the contractor under whom he had done the work, and Joseph L. Mount as owner of the property. On March 2, 1907, more than 10 days prior to the filing of the lien account, respondent gave Joseph L. Mount notice in writing of his claim against the premises, stating the amount claimed and that it was due from Houser. These facts are all alleged in the petition in the present case, and the lien account and notice of intenton to file the lien were put in evidence but are not set forth at large in the record, which recites the lien account was in proper form, contained the items described in the petition, was duly verified by affidavit, and named Joseph L. Mount "as the contracting owner of the premises." No declarations of law were given at the instance of respondent, and those requested by appellant were refused. Judgment was rendered in plaintiff's favor for $300, with interest at 6 per cent. from April 2, 1907, a lien on the premises for said amount was declared, and after appropriate motions Mount appealed, but Houser submitted to personal judgment against him. The court refused to declare, at appellant's instance, that if plaintiff furnished the material and installed the same as stated in the petition, under contract with T. L. Houser, and said Houser became indebted to plaintiff for the contract price thereof at any time on or about December 8, 1906, the verdict and finding should be in favor of Mount; that the indebtedness from Houser to plaintiff accrued when the work and material called for in the agreement between them was completed, and when Houser accepted said work as completed, and if the court found the agreement for furnishing and installing the plumbing material was completed, and the last work done and the last materials furnished by December 8, 1906, then plaintiff was not entitled to a mechanic's lien against the property of Mount even if Houser had failed to pay respondent in full.

Two defenses are insisted on: First, that notice of the lien claim was given only to appellant, whereas it should have been given to the three women who had contracted with Houser for the erection of the building and owned an equitable estate in it at the date of that contract, and also at the date respondent subcontracted with Houser; second, omitting to make those women defendants, and instituting the action only against Houser, the main contractor, and appellant. The record owner of the premises at the date of the contract for the entire building, and also at the date of the subcontract for the plumbing, was Joseph M. Griffin, and, as we have seen, he testified he was absolute owner. It looks like there must have been some understanding between him and the women that he would convey the title to them upon payment of what Mount owed him, though this fact was not clearly proved. The first question for decision is whether the lien must fail because notice of the lien demand was not given to the women who had contracted with Houser. The statutes say every person, except the original contractor, who wishes to avail himself of the benefit of the lien law shall give 10 days' notice, before the filing of his lien account and statement, to the owners of the building or improvement, or the owner's agent, setting forth the amount he claims and from whom the same is due. Rev. St. 1899, § 4221 (Ann. St. 1906, p. 2311). In Kuhleman v. Schuler, 35 Mo. 142, a local statute applicable to the city of St. Louis, but in its requirements about notice like the general statute...