General F. Extinguisher Co. v. Schwartz Bros. Com'n Co.

• Decision Date: 19 November 1901
• Citation: 165 Mo. 171,65 S.W. 318
• Parties: GENERAL FIRE EXTINGUISHER CO. v. SCHWARTZ BROS. COMMISSION CO. et al.
• Court: Missouri Supreme Court

65 S.W. 318

165 Mo. 171

GENERAL FIRE EXTINGUISHER CO. v. SCHWARTZ BROS. COMMISSION CO. et al.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

MECHANICS' LIENS — STATUTES — CONSTRUCTION — SUBCONTRACTORS — LIMITATIONS — TIME FOR FILING — COMPLETION OF WORK — ACCEPTANCE BY OWNER — SPECIFICATIONS — EXTENT OF LIEN — REPAIRS — EVIDENCE — INSTRUCTIONS.

1. Rev. St. 1899, § 4207, relative to mechanics' liens, and providing that a subcontractor's lien must be filed within four months from the "accruing of the indebtedness," means that the lien must be filed within four months after the work is finished.

2. Where the work on a building is substantially completed, and the contractor tenders the same as complete, and it is so accepted by the owner, the contractor cannot afterwards, against the will of the owner, perform some part that was called for in the contract, but which has been omitted in the construction, and thereby extend the statutory period after the completion of the work within which a mechanic's lien must be filed.

3. Where a building is substantially completed, and it is so treated by all the parties, and delivered as such by the contractor to the owner, with only some minor details remaining to be done, and the owner accepts the promise of the contractor to do them afterwards, the statutory period within which a mechanic's lien may be filed after the completion of the work begins to run from the date of such delivery.

4. The statutory period after the completion of the work within which a mechanic's lien may be filed does not begin to run until the last item called for by the contract is finished, or the last work under it is done.

5. A subcontractor sued to enforce a mechanic's lien for putting a fire extinguishing apparatus in a grain elevator. The contract required that the apparatus should be satisfactory to the board of underwriters of the city. As the work neared completion, the owners were anxious to have it brought to a condition satisfactory to the underwriters; and at the request of the owners the apparatus was inspected by the board of underwriters, and pronounced satisfactory, and put in operation, although at such time some air valves required by the specifications of the subcontract had not been put in, and some steam coils had not been covered, but the subcontractor promised to do this. The air valves were subsequently put in at the request of the owner. Held, that a contention that the work was completed when the apparatus was approved by the board of underwriters was not meritorious.

6. The facts did not show an acceptance on the part of the owners of the work, as completed, at the time of its approval by the underwriters.

7. In an action to enforce a subcontractor's lien, the question was whether plaintiff's lien had been filed within the statutory period after the completion of the work, and defendants claimed that work done on a certain day had been done for the purpose of extending the time within which plaintiffs might file their lien. There was evidence that on that day the contractor and owner requested plaintiff to extend the time for the payment of notes given for the work, and stated that, owing to the work then being done, the period for filing the lien would run from that day. Held, that such evidence might be considered as showing that the owner did not understand that the work had been completed prior to that day or accepted by him, or that the work done on that day was being performed for the purpose of extending the time for filing the lien.

8. In a suit to enforce a mechanic's lien for the installation of a fire extinguishing apparatus in a grain elevator, a contention that the replacing of a glass tube on an air gauge and the replacing of one that had been discovered leaky were merely repairs, and not the last work done under the contract, was not well taken; such work appearing to have been necessary to render the system perfect, under the specifications.

9. Where a contract for the placing of a fire extinguishing apparatus in a grain elevator provided that it should be a system satisfactory to the board of fire underwriters of the city, the contract was sufficient to sustain specifications of a subcontract calling in detail for items that appeared to be appropriate to the construction of such a system, so as to render the one constructing the system according to such specifications, under a subcontract, entitled to a lien therefor.

10. Under Rev. St. 1899, § 4207, where a contract between the owner of a grain elevator and the contractor for an addition called for one complete fire extinguishing apparatus, but the subcontract for the system was divided into two portions, — one for the part of the work in the old building, and one for the work in the addition, — work done on that part of the system situated in the addition within four months prior to the filing of a lien was sufficient to give a lien on the entire structure.

11. In an action to enforce a subcontractor's lien for placing a fire extinguishing apparatus in a grain elevator, the question was whether certain work done on the system had constituted the last work under the contract, or whether the system had been completed and accepted previously, and there was some evidence that at the time such work was done the owner and contractor had endeavored to secure from plaintiff an extension on notes given to him, and had stated that, owing to the work then being done, the period for filing of a lien would run from that date. On the trial defendant claimed that the work was done only to extend the time for filing plaintiff's lien, and the court instructed that if the jury believed that at the time the work was done the system had not been fully completed, and that it was understood between the owner, the contractor, and the subcontractor that the work was done for the purpose of completing the contract, they must not find the work completed earlier. Held, that the instruction was not erroneous, as in effect a charge that the jury might find a new agreement between the parties as to when the work was completed, since, before rendering a verdict for plaintiff under the instruction, the jury was required to find the work such as required by contract, and the court was justified in including the phrase "relative to the understanding of the parties," as bearing on the theory advanced by defendant, that plaintiff was doing something to save his lien.

12. Defendant requested the court to instruct that if the apparatus was substantially completed by the plaintiff, and so accepted by all parties, and if the contractor and the subcontractor afterwards recognized the contract price as an existing obligation, then the time for filing the lien began to run, although some work was done to complete certain air gauges subsequently. The court instructed that the indebtedness accrued when the work called for was completed, or when the parties accepted the system. Held, that the instruction contained all that was proper to give in defendant's instruction, leaving out the reference to the recognition of the debt by the contractors for which they had given their notes prior to the time when defendants claimed the work was completed, and which did not affect the lien.

13. An instruction that if, instead of putting air gauges on all the tanks of the system, as called for, the plaintiff put one air gauge in the engineer's room, and that was accepted by the owners and board of underwriters as a compliance with the contract, then subsequent work of putting on air gauges did not extend the time for filing the lien, was properly refused; it being a point on which the jury had already been fully instructed.

14. Where, in a suit to enforce a subcontractor's lien for putting in a fire extinguishing apparatus, it appeared that a deed of trust on the property was not delivered until after the plaintiff's contract was made, and the work under way, the trustee's interest did not impair the plaintiff's right to a judgment.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by the General Fire Extinguisher Company against the Schwartz Bros. Commission Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is a suit by a subcontractor to establish a mechanic's lien. The trial in the circuit court resulted in a personal judgment against the Schwartz Bros. Commission Company, the original contractor, for $7,830.12, and a special judgment establishing the lien, from which special judgment the defendant the Farmers' Elevator Company, the owner of the property, and defendant St. Louis Trust Company, trustee in a deed of trust on the property, prosecute this appeal. That the amount claimed is due the plaintiff, that the labor and materials were furnished and went into the building, and that all the requirements of the statute to establish the lien have been observed, except as to the limitation of time in filing the same, are facts undisputed. The only question in the case is, was the lien filed within four months after the indebtedness accrued, as prescribed by section 4207, Rev. St. 1899? The work in question was the construction of a fire extinguishing apparatus in the elevator; the Schwartz Bros. Commission Company contracted with the elevator company to build an addition to their elevator according to certain plans and specifications, and to equip it with a fire extinguishing apparatus, on a system to be satisfactory to the St. Louis board of underwriters; the object in submitting it to the approval of the board of underwriters being to obtain a reduction in insurance rates. The Schwartz Bros. sublet the contract of building and furnishing the fire extinguishing apparatus to the plaintiff in this suit, under certain plans and specifications agreed upon between the parties and approved by the board of underwriters. For the purposes of this suit it will not be...