Gill v. Harris

• Decision Date: 17 February 1930
• Docket Number: No. 16766.,16766.
• Citation: 24 S.W.2d 673
• Parties: CHARLES S. GILL, RESPONDENT, v. MINNIE HARRIS ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

24 S.W.2d 673

CHARLES S. GILL, RESPONDENT, v. MINNIE HARRIS ET AL., APPELLANTS.

No. 16766.

Kansas City Court of Appeals, Missouri.

February 17, 1930.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

REVERSED.

A.L. Roberts for respondent.

John I. Williamson and John L. Gaylord for appellant.

BOYER, C.

Action to establish mechanic's lien against real estate owned jointly by appellants. One W.R. Bump, doing business as the Peerless Repair Company, under two separate contracts with Maria P. Lynwood, tenant, furnished work and material for certain alterations in the building situated on the ground owned by appellants. Respondent Gill, as assignee of Bump, sued tenant Lynwood and these appellants to enforce an alleged right of mechanic's lien and impress same upon the interest of appellants in the real estate.

The petition alleged, inter alia, that Maria P. Lynwood was at all times the lessee and tenant of appellants, and as such occupied the building on the property described; that at some time prior to the 7th day of May, 1926, Bump entered into a contract with defendant Lynwood to make repairs and alterations on said building; that Bump performed said contract on his part as one entire general contract; that he made the repairs and furnished material and items shown by the statement attached to the petition; that on the 7th day of May, 1926, defendant Lynwood became and was indebted to Bump on account thereof in the sum of $951.39; that the sum of $191 had been paid thereon and the balance, $760.39 was still due, and that said account is a true statement of the indebtedness after allowing all just credits and set-offs thereon. The petition further alleges that the said Lynwood was authorized by appellants to have said repairs made and that she was appointed as their agent for that purpose and was authorized by them to make the contract with Bump, and to subject the reversionary interest of said appellants to mechanic's lien to secure the payment of such sum as might become due.

The petition further alleges that on the 16th day of August, 1926, said Bump filed in the office of the clerk of the circuit court of Jackson county, Missouri, a just and true account of said demand due him after all just credits had been given; with a description of the real estate and the names of the owners, verified by him, and as claim for lien against said real estate; and that subsequent to the filing of said mechanic's lien said Bump, for valuable consideration, did sell, assign, transfer and set over to the plaintiff the said account against defendant Lynwood, and the lien of said Bump upon and against said real estate and all of his right to enforce the same. Judgment was demanded against defendant Lynwood in the sum claimed to be due, and for judgment sustaining a mechanic's lien in favor of plaintiff and that same be declared a special lien against all the right, title and interest of all the defendants in the real estate, and that in event no sufficient property of defendant Lynwood be found to satisfy the judgment that same be levied upon the real estate.

The answer was a general denial in which all defendants joined.

A jury was waived and the cause submitted to the court upon the evidence offered, and the court rendered a finding and judgment which found the main facts in accordance with the allegations of the petition. The court further found that Bump had included in the itemized statement attached to the mechanic's lien filed by him an item for discounting his contract in the sum of $94.27, that said item was disallowed as a part of the lienable claim against the real estate. The court found that plaintiff was entitled to recover from defendant Lynwood the sum of $760.39 with interest, and that plaintiff was entitled to mechanic's lien against the property in the sum of $666.12 with interest from date of suit. It was ordered and decreed that if no sufficient property of defendant Lynwood be found to satisfy the judgment that the real estate be sold for that purpose. From this judgment defendant property owners duly appealed.

Facts in evidence disclose that appellants were the owners of the real estate subject to encumbrance; that on the first day of May, 1926, they entered into a written lease with Ernest D. Lynwood and Maria P. Wm. Lynwood by the terms of which a certain brick building bearing numbers 2411-2413-2415-2417 Vine street, Kansas City, Jackson county, Missouri, was let to the second parties for a term of five years; that the tenants were required "to take good care of the premises and keep them in good repair," and "to make no alteration in the premises without the consent of the lessors in writing, except ordinary repairs as aforesaid." Maria P. Lynwood was in possession of the building prior to the date of the lease, and on the 22d day of April, 1926, had certain booths and partitions installed at 2413 Vine street by Bump for the agreed sum of $129.66. The work under this contract was completed on April 23, 1926. Thereafter on April 29, 1926, Bump and Maria P. Lynwood entered into a second contract for the laying of new floor, painting walls and ceilings, and certain changes of doors at number 2413-2415-2417 Vine street. This contract as well as the previous one was signed and accepted by Mrs. Lynwood as "owner" of the premises. The work under the second contract was completed May 7, 1926. In the account rendered by Bump for the work under the second contract he included an item of $94.27 as a charge for discounting his contract with respondent.

It appears that at the time of the second contract, Mrs. Lynwood informed Bump that she was not able to pay for the repairs in cash. In order to secure funds Bump discounted his contract to the respondent. There is evidence that prior to the time of discounting his contract to respondent that he endeavored to have Mrs. Lynwood sign a document in which it was recited that because the property in which the work was to be done was not subject to lien, and because the owners did not agree to pay for the repairs that Mrs. Lynwood would give her note to Bump covering the cost of the repairs and secure the note by mortgage on real estate owned by her. Mrs. Lynwood refused to sign the agreement, and Bump testified that no such agreement was ever presented to or sought to be obtained from her.

On May 10, 1926, after the completion of the work under the second contract, Bump sold and assigned all of his right, title and interest under said contract to the respondent. This assignment was evidenced by a formal written document of considerable length. By its express terms the contractor,

"Sold, assigned, transferred and set over, and does hereby sell, assign, transfer and set over unto said Charles S. Gill, his successors and assigns, all right, title and interest of the contractor in and to that certain contract for general repairs installed in and about the building at No. 2413-15-17 Vine St., Kansas City, Mo., made by Marie P., Wm. Lynwood, Minnie Harris and Julia Batrick, as owners, with the contractor, dated the 26 day of April, 1926, which is hereto attached and made a part hereof, and all sums of money now due and/or hereafter to become due thereon, including costs, charges, interest, expenses and attorneys' fees in accordance with terms of said contract, with full power and authority to Charles S. Gill, or his successors and assigns, to endorse in his own name or that of the contractor, all checks, drafts and money orders received under said contract; to sue for, collect and receipt for all indebtedness under said contract and to discharge or file claim for mechanic's lien against the property described in said contract and to foreclose said lien in his own name or that of the contractor; to sell and assign any or all right, title and interest of Charles S. Gill in and to said contract, together with any or all other powers, rights or interests herein granted, sold, assigned and set over to the said Charles S. Gill."

This assignment contract further recited that the sum of $801.39 was justly due and unpaid on said contract, payable in installments, and that the contractor had not done and would not do any act to hinder or prevent the collection of same by said Gill, but would at all times do all in his power to assist in the collection of the same, and that in case of default on the part of the property owner that he would, at the expense of Gill, file and perfect any lien to secure said Gill; and further that there were no credits or set-offs of any kind against said indebtedness, and that entries had been made on the books of the contractor disclosing the sale of said contract to Charles S. Gill.

Respondent was engaged in the business of discounting contracts similar to the one held by Bump. There was testimony that before he would discount the particular contract he required Bump to satisfy him that the owners of the property had authorized the repairs and that in pursuance thereto Bump presented to him a letter purporting to agree to and authorize the improvement. The letter was signed "Minnie Harris, Julia Batrick, by A.S. Batrick, Agt." Respondent testified that Minnie Harris informed him that whatever A.S. Batrick said concerning the property on Vine street "goes" and that A.S. Batrick was her agent and had signed the letter for her. The letter was not presented to her, but witness said she was informed of its contents. Minnie Harris denied that she made any such statement and denied that Batrick was her agent for any such purpose. There was...