Fitzgerald v. Schaefer

• Decision Date: 18 January 1949
• Docket Number: No. 27522.,27522.
• Parties: FITZGERALD v. SCHAEFER et al.
• Court: Missouri Court of Appeals

216 S.W.2d 939

FITZGERALD v. SCHAEFER et al.

No. 27522.

St. Louis Court of Appeals. Missouri.

January 18, 1949.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Suit by J. P. Fitzgerald, doing business as Fitzgerald Roofing Company, against Leonard A. Schaefer, doing business as L. A. Schaefer Construction Company, and others for balance due for labor and materials and to establish a mechanic's lien, wherein defendants Arnold J. Fleer and Christine J. Fleer filed a cross bill based on plaintiff's alleged failure to comply with his contract. From a judgment in favor of defendants on plaintiff's cause of action and in favor of plaintiff on cross bill, plaintiff appeals.

Judgment affirmed.

Walter Lambert, of St. Louis, for appellant.

John A. Nolan and Arnold J. Willmann, both of Clayton, for respondents.

BENNICK, Commissioner.

This is a mechanic's lien suit which was brought by plaintiff, J. P. Fitzgerald, doing business as Fitzgerald Roofing Company, to recover the sum of $465, with interest, as the reasonable value of the labor and materials going into the installation of a tile roof on certain premises owned by defendants Arnold J. Fleer and Christine J. Fleer, his wife, and located on Clearview Drive in the Village of Bel Nor, St. Louis County. Plaintiff prayed that he be given judgment for such sum against the principal contractor, defendant Leonard A. Schaefer, doing business as L. A. Schaefer Construction Company, and that the amount of such judgment be adjudged a mechanic's lien against the building and land prior and superior to the lien of a deed of trust theretofore executed by the Fleers in favor of defendants Carl A. Wessel as trustee and Marie A. Lichtenberger as cestui que trust.

Plaintiff's petition was in the conventional form for an action seeking such relief.

Defendant Schaefer, for his answer, admitted that he had contracted with plaintiff for the installation of the roof, but denied that plaintiff had complied with the terms of his contract in that he had furnished inferior and defective materials and had performed his work and labor in an unskillful and unworkmanlike manner. He then alleged that plaintiff had refused to complete his work and labor; that by reason of plaintiff's failure and refusal the work had been rejected and the roof removed and a new roof installed; and that there was nothing due and owing to plaintiff from him.

Defendants Arnold J. Fleer and Christine J. Fleer, his wife, admitted their ownership of the property and defendant Schaefer's status as original contractor, but otherwise denied the allegations of plaintiff's petition.

Joined with their answer was a cross bill by which they sought damages of $1,500 from plaintiff on account of his alleged failure to comply with his contract.

Defendants Carl A. Wessel and Marie A. Lichtenberger admitted that they were trustee and cestui que trust respectively in the deed of trust mentioned in plaintiff's petition, and that they still owned and held the deed of trust and notes secured thereby, but otherwise denied the allegations of plaintiff's petition.

At the conclusion of the evidence there was a finding and judgment in favor of defendants on plaintiff's cause of action, and in favor of plaintiff on the Fleers' cross bill. Plaintiff thereupon filed his motion for a new trial, and this being overruled, he gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

For his chief complaint plaintiff argues that judgment should have been rendered in his favor in accordance with the prayer of his petition.

In view of the relationship of the various parties to this action, it was of course a condition to plaintiff's right to a lien that he recover a personal judgment against defendant Schaefer, the principal contractor. Construction Materials Co. v. Grund, Mo.App., 192 S.W.2d 45; Watkins v. Mayer, Mo.App., 103 S.W.2d 566.

In his petition plaintiff alleged that he had furnished the labor and materials at the special instance and request of defendant Schaefer, and that they were reasonably worth the respective sums which he charged therefor in the lien account. Such cause of action was obviously one in quantum meruit (Warder v. Seitz, 157 Mo. 140, 149, 57 S.W. 537; Balsano v. Madden, Mo.App., 138 S.W.2d 660), and, being in quantum meruit, was subject to be defeated by proof that the labor and materials were of no value, and that the roof was in fact so defective that it had to be removed and an entirely new roof installed in its place. John O'Brien Boiler Works Co v. Sievert, Mo.App., 256 S.W. 555; Brush v. Miller, Mo.App., 208 S.W.2d 816. Furthermore, as stated in the above authorities, the burden of proof was on plaintiff to show, if he might, that the labor and materials were reasonably worth the amount which he was seeking to recover.

To set out the facts in great detail would serve no useful purpose. Counsel recognize that the evidence was in conflict upon the crucial issue of whether the roof was so defectively installed as to have been wholly worthless for the purpose for which it was intended.

Suffice it to say that the roof, as finally agreed upon, was to be made of tile. However new tile was not available, and Schaefer accepted plaintiff's proposal to construct the roof of used tile, which was supposed to be suitable and practical. Plaintiff completed the roof except for the porch, and,...