General Fire Extinguisher Company v. Schwartz Brothers Commission Company
| Decision Date | 19 November 1901 |
| Citation | 65 S.W. 318,165 Mo. 171 |
| Parties | GENERAL FIRE EXTINGUISHER COMPANY v. SCHWARTZ BROTHERS COMMISSION COMPANY et al.; FARMERS ELEVATOR COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Affirmed.
Clinton Rowell, Joseph H. Zumbalen and Rassieur & Rassieur for appellants.
(1) The court erred in refusing to give the demurrer to the evidence at the close of plaintiff's case, as it clearly appeared that the lien was not filed in time. R. S. 1899, sec. 4807. (a) The lien should have been filed within four months after the acceptance and approval of the plant, on July 23, 1896. Mfg. Co. v. Burns, 59 Mo.App. 391; Scott v Cook, 8 Mo.App. 197; Johnson v. White (Tex.), 27 S.W. 174; Phillips on Mech. Liens (3 Ed.), sec. 137; Boisot on Mech. Liens, sec. 486; Flint v. Raymond, 41 Conn. 510; Woodruff v. Hovey, 91 Me. 116; Trustees v. Davis, 85 Va. 196. (b) The doing and furnishing additional work and materials which had been overlooked, subsequent to the approval and acceptance of the work, will not extend or enlarge the time for filing the lien. Cases cited above. (c) The air gauges were not called for by the original contract for the improvement with the owner, and, hence, the furnishing them, after acceptance and approval of the plant, did not extend the time. Sash & Door Co. v. Buckner, 80 Mo.App. 95; Scott v Cook, 8 Mo.App. 193. (d) The work done on November 12 was repair work on parts of the apparatus accepted as complete in July, and did not extend the time. Berry v. Turner, 45 Wis. 105; Congdon v. Kendall (Wis.), 73 N.W. 659; Harrison v. Homeopathic Ass'n, 134 Pa. St. 558; Homeopathic Ass'n v. Harrison, 120 Pa. St. 28; McKelvey v. Jarvis, 87 Pa. St. 414; Phil. P. & P. Co.'s Estate, 4 Pa. Dist. 57; Davis v. Alvord, 94 U.S. 545; Dunn v. McKee, 5 Sneed, 657. (e) The alleged agreement of November 12 that the work then being done was work called for and done in completion of the contract, was not effectual to preserve the lien. Fitzgerald v. Thomas, 61 Mo. 51; Hannon v. Gibson, 14 Mo.App. 37; Minor v. Moore, 53 Tex. 224; Davis v. Alvord, 94 U.S. 545; Hilliard v. Allen, 4 Cush. (Mass.) 536. (2) The court erred in giving the plaintiff's first instruction, and in refusing defendant's second, fifth, seventh and tenth instructions. See authorities under point 1. (3) The court erred in refusing to instruct that plaintiff was not entitled to a lien for work done in the old building, because the evidence discloses that the work of November 10 and 12 was repairing air gauges in the new building, and there was a separate contract for each building. Kern v. Pfaff, 44 Mo.App. 29; Kearney v. Wurdeman, 33 Mo.App. 456; Livermore v. Wright, 33 Mo. 31.
James A. Seddon and James L. Blair for respondent.
(1) Plaintiff's indebtedness accrued, under the statute, on the twelfth day of November, 1896, the date on which the last work was done and the last material furnished, pursuant to the contract between the owner and the original contractors, and pursuant to the contracts between the original contractors and the plaintiff. The time for filing a lien began to run from the furnishing of the said last item. Livermore v. Wright, 33 Mo. 31; Squires v. Fithian, 27 Mo. 134; Allen v. F. M. & S. Co., 73 Mo. 688; Bruns v. Braun, 35 Mo.App. 237; Miller v. Whitelaw, 28 Mo.App. 339; Fulton Iron Works v. M. & S., 80 Mo. 265; Cole v. Barron, 8 Mo.App. 509; Miller v. Wilkinson, 167 Mass. 136; Monaghan v. Putney, 161 Mass. 338; Worthen v. Cleveland, 129 Mass. 570; Cole v. Uhl, 46 Conn. 296; Nichols v. Culver, 51 Conn. 177; McIntyre v. Trautner, 36 Cal. 429; Gordon Hdw. Co. v. Railroad, 86 Cal. 620; National Stock Yards v. O'Reilly, 85 Ill. 546; Washington Bridge Co. v. Land River I. Co. (Wash.), 40 P. 982; McCarthy v. Groff (Minn.), 51 N.W. 218. (2) Where goods are furnished by a materialman and his contract is nearly completed, it is immaterial that the last items are furnished by the materialman several months thereafter, provided that the goods furnished are a part of the original contract, and provided they are furnished at the request of the owner and not voluntarily furnished by the materialman for the purpose of saving his lien. See authorities cited under point 1. (3) Where it is specially agreed between the materialman and the owner, or impliedly understood, that the account is to be kept open and continued as one and the same continuous transaction and course of dealing, the account will be considered as one continuous account. (4) Mr. Kalb, agent of the owner, requested that certain final work be done, on the ground that it was called for under the contract, and said agent directly stated to plaintiff, while said work was going on, that it was being done under the contract, and that the lien time would run from said date. The plaintiff acted on that interpretation of their contract and transactions under it and postponed filing its lien. Under such circumstances, defendant will not be heard to claim that the additioal work, done at its request to complete the contract, was not a continuation of the previous work and done under the same contract. Williams v. Railroad, 153 Mo. 487; Carter v. Foster, 145 Mo. 383; Wetmore v. Crouch, 150 Mo. 671; Drug Company v. Sanders, 70 Mo.App. 221; Clark on Contracts, p. 549; Topliff v. Topliff, 122 U.S. 121; French v. Pearce, 8 Conn. 439; Gas Company v. Wire Company, 155 Pa. St. 22; People ex rel. v. Murphy, 119 Ill. 159; District v. Gallagher, 124 U.S. 505; McIntyre v. Trautner, 63 Cal. 429; Garnhart v. Finney, 40 Mo. 449; Bank v. Frame, 112 Mo. 502; Krey v. Hussman, 21 Mo.App. 343; Reynolds v. Kroff, 144 Mo. 433. (5) Even if there had been an absolute acceptance of the work and defects had afterwards appeared, and had been remedied by the plaintiff at the request of the owner and the contractor, the time for filing lien would run from the date of remedying said defects. Haydon Slate Co. v. Anderson, 75 Mo.App. 281; also authorities cited under point 4.
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 Schwartz Brothers 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, 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 cause is, was the lien filed within four months after the indebtedness occurred as prescribed by section 4207, Revised Statutes 1899?
The work in question was the construction of a fire extinguishing apparatus in the elevator. The Schwartz Brothers 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 Brothers 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 necessary to set out here the specifications further than to say that there were to be four tanks on the top of the buildings and each tank was to be equipped with a water gauge and an air gauge.
In June, 1896, while the work was in course of construction and nearing its completion, the elevator company were anxious to have it brought to the condition which would be satisfactory to the underwriters, so that it might obtain the reduction in insurance rates, and began to urge Mr. Henley, the inspector of the underwriters, to inspect the work and pronounce it finished. Accordingly, about July 1, Mr. Henley inspected the work, but declined to pronounce it complete, because he found some sprinkler heads not inclosed in casings and some steam coils not covered. There was a difference of opinion between Mr. Henley and Mr. Moore, the superintendent of plaintiff's work, as to the duty of the plaintiff under the contract to inclose the sprinkler heads in casings as demanded, but finally Mr. Moore agreed to do so, but said he did not want to cover the steam coils just then as he was busy and there was no hurry for it but would do it later. At that time Mr. Henley made no objection relating to water gauges or air gauges; he had not then seen the contract under which the work was being done, and inspected it only from the standpoint of a system satisfactory to the board of underwriters. On July 23, 1896, Mr. Henley again inspected the work and finding the sprinkler heads inclosed and taking the promise of Mr. Moore that he would cover the steam coils in due season, addressed a note to the secretary of the board of underwriters of that date, informing him that the apparatus was complete. The system was put into operation that day and the elevator company's insurance rates reduced in consequence. The steam coils were covered within a few days thereafter.
At the time Mr. Henley gave the certificate above mentioned, each tank was supplied with a water gauge but not with an air gauge. In place of the...
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