Fuhler v. Gohman & Levine Const. Co.

• Citation: 142 S.W.2d 482,346 Mo. 588
• Decision Date: 23 July 1940
• Docket Number: 36270
• Parties: George J. Fuhler v. Gohman & Levine Construction Company et al., Defendants, Royal Neighbors of America, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 482

346 Mo. 588

George J. Fuhler v. Gohman & Levine Construction Company et al., Defendants, Royal Neighbors of America, Appellant

No. 36270

Supreme Court of Missouri

July 23, 1940

Motion for Rehearing Overruled June 28, 1940.

Motion to Transfer to Banc Overruled July 23, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Lendon A. Knight, David Levinson, S. Mayner Wallace and B L. Liberman for Royal Neighbors of America.

(1) Inexcusable delay, in the prosecution of the lien claims operated, by virtue of the statute, as an extinguishment of the claims. R. S. 1929, sec. 3172; Julius Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 981; Holt v. Miller, 6 P.2d 937, 79 A. L. R. 847; Hayward Lbr. & Inv. Co. v. Greenwalt, 12 P.2d 445; Gluck v. Ruiz-Urrutia, 129 A. 130; Patterson Glass Co. v. Goldstein, 129 A. 422; Toher v. Lochinvar Realty Co., 108 N.Y.S. 667; Svela v. Bloch, 294 Ill.App. 522; Conrad v. Certified Ice & Fuel Co., 276 N.W. 287. (2) Claimant George J. Fuhler is not entitled to a lien. (a) Fuhler's lien claim is not a "just and true" account under the mechanic lien statutes because it disregards the written contract and is for an amount largely in excess of the contract price. By suing in quantum meruit Fuhler cannot avoid his contract and in no event can he recover more than the contract price less the admitted payments. R. S. 1929, sec. 3161; Natl. Press Brick Co. v. Lester Const. Co., 177 Mo.App. 573; Grace v. Nesbitt, 109 Mo. 9; Harry Cooper Supply Co. v. Rolla Natl. Bldg. Co., 66 S.W.2d 595; Schroeter Bros. Hardware Co. v. Croatian Sokol Gymnastic Assn., 58 S.W.2d 995; State ex rel. St. Francois County B. & L. Assn. v. Reynolds, 288 Mo. 522; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50; Bradley Heating Co. v. Sayman Realty & Inv. Co., 201 S.W. 864; Kansas City Structural Steel Co. v. Athletic Bldg. Assn., 297 Mo. 615; Johnston v. Pump Co., 274 Mo. 414; Williams v. Chicago, S. F. & C. Ry. Co., 112 Mo. 463; Mansur v. Botts, 80 Mo. 651; Aldridge v. Shelton Estate, 86 S.W.2d 395; Hoyt v. Buder, 318 Mo. 1155. (b) The filing by Fuhler of a lien claim which was not just and true within the meaning of the statute invalidated his entire lien claim. Reese v. Hoyer, 95 S.W.2d 884. (c) Fuhler's lien claim was not filed in time. R. S. 1929, sec. 3161; General Co. v. Elevator Co., 165 Mo. 171. (d) Fuhler by his contract waived any right to a lien by virtue of a provision of the specifications and by his agreement to take second mortgage bonds in partial payment. 40 C. J., sec. 164, p. 147; Selma Sash v. Stoddard, 22 So. 555; Henley v. Wadsworth, 38 Cal. 356; Szemko v. Weiner, 163 N.Y.S. 382; Early v. Atchison, T. & S. F. Ry. Co., 167 Mo.App. 252; Pressed Brick Co. v. Barr, 76 Mo.App. 380; Isenman v. Fugate, 36 Mo.App. 166; 40 C. J., sec. 415, p. 314; Baumhoff v. St. L. & Kirkwood Ry. Co., 171 Mo. 120; Dierks & Sons Lbr. Co. v. Pearman, 172 Mo.App. 107.

William J. Becker for Martin A. Federer.

(1) Neither this respondent nor any other, in this case is guilty of inexcusable delay. R. S. 1929, sec. 3172; Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 981. (2) The Federer claim and lien does contain a just and true account as required by the statute and the law. R. S. 1929, sec. 3161; Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Aldridge v. Shelton Estate, 86 S.W.2d 395. (a) Respondent Federer's lien having been filed within four months after the completion of his work was filed in time. R. S. 1929, sec. 3161; Hanenkamp v. Hagedorn, 110 S.W.2d 826; Lee & Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451, 341 Mo. 95; Miners Lbr. Co. v. Miller, 117 S.W.2d 711; Harry Cooper Supply Co. v. Gillioz, 107 S.W.2d 798; Moller-Vandenboom Lbr. Co. v. Boudreau, 85 S.W.2d 141, 231 Mo.App. 1127. (b) Under the terms of the respondent Federer's contract he did not waive his right to a mechanic's lien, as is shown by the record, and the appellant is in no position to make a claim of waiver for the reason that said defense is an affirmative one which was not pleaded. R. S. 1929, sec. 776; Neville v. D'Oench, 34 S.W.2d 507. (3) No answer or pleading to the cross-bill of this respondent, Martin A. Federer, having been filed, his claim stands as admitted or confessed. R. S. 1929, sec. 776; Stein v. Rainey, 286 S.W. 57.

Claud D. Hall for Harry Waldron.

(1) There was no delay in the prosecution of the lien proceedings requiring a dismissal of the same. Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 979; Hydraulic Press Brick Co. v. Lane, 198 Mo.App. 438; Secs. 3180-3186, R. S. 1929. (2) Claimant George J. Fuhler is entitled to his lien for the brickwork and materials furnished to the improvement. (a) Claimant Fuhler properly recovered on quantum meruit for the reasonable value of work and material. Johnston v. Star Bucker Pump Co., 202 S.W. 1152; Ehrlich v. Life Ins. Co., 88 Mo. 249; McCullough v. Baker, 47 Mo. 401. (b) Even though there was a contract and it was modified by mutual consent and such claim of quantum meruit may include all extras furnished without any reference to the contract and modifications. Beattie Mfg. Co. v. Heinz, 120 Mo.App. 465; Gregg v. Gunn, 38 Mo.App. 283; Kick v. Doerste, 45 Mo.App. 134. (c) The contract price is only prima facie evidence of the reasonable value of the work and material. Natl. Press Brick Co. v. Lester Const. Co., 167 S.W. 1027; Martin-Welch H. & P. Co. v. Spencer, 214 S.W. 417; Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 489; Yeats v. Ballentine, 56 Mo. 530; Mansur v. Botts, 80 Mo. 655; Barnett v. Sweringen, 77 Mo.App. 61; Daniels v. McDaniels, 184 Mo.App. 355; Macke v. Harris, 27 S.W.2d 1080. (d) Mr. Fuhler's lien claim could properly include a profit on the work and material as long as it constituted a part of or was of the reasonable value thereof. Borden v. Mercer, 163 Mass. 7, 39 N.E. 413, cited with approval in Bradley Heating Co. v. Sayman Realty & Inv. Co., 201 S.W. 864; Elder Merc. Co. v. Ottawa Inv. Co., 165 P. 279, 100 Kan. 597; Marshall v. Cohen, 32 N.Y.S. 283, 11 Misc. 397; Leach v. Bopp, 12 S.W.2d 514. (e) Defendant only filed a general denial, did not plead a special contract or any affirmative defense and not entitled to any affirmative defense. Colburn v. Krenning, 220 S.W. 934; Brown Cons. Co. v. McArthur Bros. Co., 236 Mo. 41. (f) The exceptions of Royal Neighbors of America to the report of the referee, as far as the Waldron claim is concerned, were too general and did not specifically point out the ruling complained of or wherein it was not warranted by the law or the evidence, and was therefore insufficient. For said reasons alone said exceptions were promptly overruled. Dallas v. Brown, 60 Mo.App. 493; Cahill v. McCornish, 74 Mo.App. 609; State ex rel. v. Boeppler, 63 Mo.App. 151. (3) The Fuhler lien was filed within the statutory time. Sec. 3161, R. S. 1929. Claimant Fuhler did not waive the right to his lien. (a) Defendant only filed a general denial and did not set up any contract, breach of contract or other defense. Brown Const. Co. v. McArthur Bros., 236 Mo. 41; Hunt v. M., K. & T. Co., 152 Mo.App. 182. (b) If defendant had specially pleaded such defenses it must have averred and proved performance of the contract on the part of the owner. Major v. Hast, 263 S.W. 468; Johnson v. Brill, 295 S.W. 563; Asadorin v. Sayman, 233 S.W. 475. (4) Claimant Waldron was properly held to be entitled to his lien. (a) A mechanic's lien is a proceeding in equity for every purpose. Rust Sash & Door Co. v. Bryant, 124 S.W.2d 544. (b) Where the parties are in court a court of equity will protect the subcontractor's claims on equitable principles. Rockwell on Mechanic's Liens, sec. 66, p. 167; Brus Electric Co. v. Warwick E. Light Mfg. Co., 6 Ohio Dec. 475; Owen v. Murry, 6 Ohio Dec. 223. (c) Where the right to a lien is fixed by giving notice, so much of the amount due or becoming due to the contractor as will equal the claim of the subcontractor becomes transferred to him and he would have equitable claim on the fund even though he might not enforce it on the building. Rockwell on Mechanic's Liens, sec. 66, p. 166; Bates v. Santa Barbara County, 90 Cal. 543; Weldon v. Superior Court of Los Angeles, 138 Cal. 427, 71 P. 502. (d) Defendant Royal Neighbors having filed a mere general denial, it cannot take advantage of defect of party as same is waived. Johnson-Frazier Lbr. Co. v. Schuler & Muench, 49 Mo.App. 97; Butler v. Lawson, 72 Mo. 227; Horstkotte v. Meiner, 50 Mo. 158; Fruin v. Furniture Co., 20 Mo.App. 313; Miss. Planing Mill v. Presbyterian Church, 54 Mo. 520; Lee & Boutell Co. v. Brockett Cement Co., 106 S.W.2d 160. (5) The mechanic's lien statute should be liberally construed in order to preserve the benefit to be conferred. Waters v. Gallemore, 41 S.W.2d 870; Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512; Carroll Const. Co. v. Newsome, 201 Mo.App. 117, 210 S.W. 114; Lee & Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451. (6) The report of the referee, which was confirmed by the lower court, stands as a special verdict. Fine Art Picture v. Karvin, 29 S.W.2d 170; Roberts v. Hendrickson, 75 Mo.App. 484; Fleeney v. Chapman, 89 Mo.App. 371; Martin v. Martin, 218 Mo.App. 617.

Walter Lambert, James H. Zipf and H.A. and C. R. Hamilton for other respondents.

(1) There are no grounds for the dismissal of this cause for any of the reasons alleged by appellant. (a) A party may not object to delay in the prosecution of an action, which he requested or to which he consented, nor may his successor in title so do. Lovitt v. Russell, 138 Mo. 474. (b) A party filing a motion to dismiss a mechanics' lien action for failure to prosecute with diligence must establish that the delay in prosecution was unnecessary. Seidel Lbr. Co v....