Foster v. Wulfing

• Citation: 20 Mo.App. 85
• Parties: J. A. FOSTER ET AL., Respondents, v. C. WULFING, Appellant.
• Decision Date: 22 December 1885
• Court: Missouri Court of Appeals

20 Mo.App. 85

J. A. FOSTER ET AL., Respondents,

v.C. WULFING, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 22, 1885.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

LEO RASSIEUR and DEXTER TIFFANY, for the appellant: The court erred in submitting the case to the jury without first making Hayden a party defendant. Hayden was one of the joint contractors and defendant, Wulfing, had a right to have him joined as a defendant, so that a personal judgment might be had against him and execution returned before the lien could be enforced against the property; this request was properly in the answer. Putnam v. Ross, 55 Mo. 116; Horstkotte v. Menier, 50 Mo. 158. The account filed is not such an account as the statute requires; there are no items whatever, either as to amount of labor or its value, or amount of materials, such as stock brick, common brick, or paving brick, etc., or their respective values. Codling v. Nast, 8 Mo. App. 573; Lowis v. Cutter, 6 Id. 55; Cole v. Barron, 8 Id. 511; Heinrich v. Cardt, 8 Id. 588; Kling v. R. Constr. Co., 7 Id. 410.

H. D. LAUGHLIN and M. F. TAYLOR, for the respondents: An itemized account is not necessary where a lump contract is made directly with the owner of the property, and when not made directly with the owner of the property, but he is aware of the terms of such contract, and assents to them, the legal conclusion is the same. Nelson v. Withrow, 14 Mo. App. 277; Louis v. Cutter, 6 Id. 55; Kling v. R. Constr. Co., 7 Id. 410; Hilliker v. Francisco, 65 Mo. 603.

ROMBAUER, J., delivered the opinion of the court.

This is an action by sub-contractors against the principal contractors and the owner of the property, seeking a general judgment against the former and a judgment of lien against the latter's property. Upon the trial below there was a verdict and judgment against the contractors for $1,299.54, and a judgment against the property for $1,274.16. To reverse this judgment the owner appeals.

Several points are made by the appellant, which have been passed on by this court adversely to him in the case of Hayden v. Wulfing (19 Mo. App. 353); but as this case presents them in a different view, and as they are of practical importance to the profession, we will briefly review them for the purpose of stating our conclusions in a concise form.

There are two sections in the mechanics' lien law, which contemplate necessary parties to a proceeding under the statute. The one is section 3180, which provides that “the parties to the contract shall, and all other persons interested in the matter in controversy, or in the property charged with the lien, may, be made parties;” the other is section 3191, which makes it the duty of contractors to defend actions brought upon a lien by sub-contractors.

When section 3180 speaks of parties to the contract, it refers to parties to that contract which is the subject matter of inquiry, and as between whom a personal judgment is to be rendered. Thus, to an action brought by a sub-contractor or material man against the contractor and the property, the contractor is a necessary party, because the statute does contemplate a personal judgment against some one, and such judgment is only possible if parties to the contract are parties to the action. But even in that case the statute is satisfied if one of several joint contractors is made a party defendant, because, as all contracts in this state, though joint at common law, are joint and several, a personal judgment may be rendered against the contractor, although his co-contractor is not joined with him as defendant. This point was so decided in Putnam v. Ross (55 Mo. 116), and Hassett v. Rust (64 Mo. 325, 327), and is no longer open for discussion.

Section 3191 does not speak of the parties to the action at all, but since it provides that it shall be the duty of the contractor to defend the action, the supreme court held in Horstkotte v. Menier (50 Mo. 159), that the original contractor ought to be made a party defendant, in compliance with the provisions of this section, in order that his own rights, as well as the rights of the owner of the property, may be fully protected.

Under our decisions, therefore, it is not essential to the validity of the lien judgment that all the original contractors shall be made parties defendant to the suit.

In this case the appellant sets up in his answer that one Thomas F. Hayden, not joined as a defendant in this suit, was one of the original contractors with the owner, and by his contract agreed to protect the defendant from mechanics' liens, and he pleads the fact of the nonjoinder of Hayden in abatement. That fact is not pleadable in abatement under any circumstances. It appeared in evidence that Hayden was surety for the original contractors, and agreed to protect the defendant against the liens of mechanics. If the defendant desired to bind Hayden by the result of the present action, his proper course was to request the court to have him made a party defendant, and if the court, in the exercise of its decretion, failed to comply with such request, then to notify Hayden of the pendency of the suit and request him to defend against it. He has done neither.

Hence it follows that the error assigned by the defendant, that the lien judgment must fail because Hayden was not made a party defendant, is not well assigned in any view of the case.

The next error assigned is, that the petition fails to state that the suit was instituted within ninety days after filing of the account, and that this fact although not stated was submitted to the jury for their finding by instruction. It is not apparent why the court submitted this fact to the jury to find, since it appeared by the records of the court that the lien was filed on the twentieth of October, 1884, and that the suit was instituted on the fifteenth of November, 1884, yet it is inconceivable how the defendant could have been prejudiced because the jury found a fact to be true which was conclusively established against him by the unchallenged records of the court. As we have already decided in Hayden v. Wulfing, supra, that it was not necessary to allege in the petition that the suit was instituted within ninety days after the filing of the account, it is needless to reiterate our views on that subject. It results that this second objection is likewise untenable.

The only serious question arises on the third error assigned, which is, that the statement filed by the plaintiffs, as and for a lien in the clerk's office, was not in compliance with the requirements of the statute which requires a just and true account to be filed.

The statement as far as it bears on this point is as follows:

“ST. LOUIS, October 1, 1884.

Messrs. A. J. Cramer & Co. to John A. Foster & Son, Dr.

From July 1, to September 15, 1884.

To laying the brick and furnishing materials and brick, for one two story brick building containing four tenements known as number 1936, 1938, 1940, and 1942 Papin street, in the city of St. Louis, as per contract

$3,275

July 26, by cash

1,500

August 9, by cash

500

Balance

$1,275”

It appears by the contract between the main contractors and the defendant, that the contractors agreed to erect the entire structure for a lumping charge of $11,550. No price was put by that contract on the brick work as separated from the residue of the work. The words, as per contract, in the above statement, therefore, necessarily refer to the contract between the sub-contractors and contractors, and not to the contract between the contractors and owner.

That a statement, purporting to contain an account, which does not furnish its own explanation but refers to another paper for information, will not satisfy the statutory requirements, has been decided in Lowis v. Cutter (6 Mo. App. 54). There, the following statement: “To painting, glazing, graining, and varnishing as per proposition and agreement, $354.50,” was held insufficient. That case is almost identical in its facts with this, the conclusions there drawn rest upon satisfactory reasoning, and have been since repeatedly affirmed ( Kling v. R. Constr. Co., 7 Mo. App. 411; Codling v. Nast, 8 Mo. App. 573), and such is the ruling in other states under similar statutes. Russell v. Bell, 44 Pa. St. 47; Lee v. Burke, 66 Pa. 336; Phil. Mech. Liens, 489.

The case of Hilliker v Francisco (65 Mo. 598, 603), is not opposed to this view. The court sustained the lien there, although the suit was prosecuted by a subcontractor, and one of the items in the account was for a lumping charge, but its ruling is expressly put upon the ground that there was evidence tending to show, not only that the owner was apprised of the terms of the contract between the contractors and the plaintiff, but, also, that he had agreed with the contractors to the sum of $7,000 as compensation to the plaintiff for the labor and material mentioned in the lumping charge. As the owner had agreed with the contractor that the sub-contractor should be paid a certain amount for a certain item of work, it was held sufficient that the account mentioned the item of work, accompanied with a lumping charge.

The facts here are essentially different. In no view of the testimony can we discover any evidence in the record that the owner had anything to do with the contract between the contractors and sub-contractors. He paid the contractors' orders upon him in favor of the sub-contractors, because the original contract provided that he should do so while there was money in his hands. The owner's superintendent directed what work should be done by the bricklayers, because he was in charge of the construction of the work, and authorized to treat sub-contractors as performing the work which the original contract called for; and that was all.

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