H.B. Deal & Co. v. Hamilton-Brown Shoe Co.

• Citation: 160 S.W.2d 719,349 Mo. 275
• Decision Date: 26 February 1942
• Docket Number: 37804
• Parties: H. B. Deal & Company, Inc., a Corporation, Appellant, v. Hamilton-Brown Shoe Company, a Corporation, and William H. Killoren, Trustee in Bankruptcy of Hamilton-Brown Shoe Company, a Corporation, Bankrupt
• Court: Missouri Supreme Court

160 S.W.2d 719

349 Mo. 275

H. B. Deal & Company, Inc., a Corporation, Appellant, v. Hamilton-Brown Shoe Company, a Corporation, and William H. Killoren, Trustee in Bankruptcy of Hamilton-Brown Shoe Company, a Corporation, Bankrupt

No. 37804

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed as to denial of lien; but otherwise reversed and remanded (with directions).

Julius H. Drucker, Philip C. Wise, David H. McGhee and E H. Wayman for appellant.

(1) Even if the trial court were right, which we do not concede, that plaintiff was not entitled to a mechanic's lien, nevertheless the plaintiff was entitled to a general judgment, since the court found that the defendant Hamilton-Brown Shoe Company was indebted to the plaintiff for the full amount sued for. Floreth v. McReynolds, 224 S.W. l. c. 998; Cahill, etc., v. McCornish, 74 Mo.App. l. c. 614; Williams v. Porter, 51 Mo. 441; and since it was admitted and the court also found that plaintiff had obtained permission from the federal court to institute and prosecute its suit. (2) Where work and material is furnished, all going to the same general purpose, and the parties had it in contemplation that the whole should form one and not distinct matters of settlement, the account must be considered as a unit or as being but a single contract. Page v. Bettes, 17 Mo.App. 375; Bruns v. Braun, 35 Mo.App. l. c. 344; Eldridge v. Fuhr, 59 Mo.App. l. c. 51; Lumber Co. v. Ice Co., 174 Mo.App. 414; Fire Door & Sheet Metal Works v. Viviano, 194 Mo.App. l. c. 453. (3) Whether or not the lien account filed by plaintiff is a just and true account depends upon the circumstances. Planing Mill Co. v. Allison, 138 Mo. l. c. 50. (4) Where there are no interests involved except those of the lienor and the owner, a most liberal application of the statute should be given in passing upon the validity of the lien paper filed. Lumber Co. v. Robson, 182 Mo.App. l. c. 625; Certiorari quashed by Supreme Court en banc in State ex rel. O'Malley v. Reynolds, 182 S.W. 743. (5) The Mechanic's Lien Law should be construed with reasonable liberality and liens should not be defeated on mere technical grounds. Rude v. Mitchell, 97 Mo. 365; Grace v. Nesbit, 109 Mo. 9; State ex rel. O'Malley v. Reynolds, 182 S.W. 743; Supply Co. v. Rolla National Bldg. Co., 66 S.W.2d l. c. 595; Leach v. Bopp, 223 Mo.App. 254; Hanenkamp v. Hagedorn, 110 S.W.2d l. c. 829; Richey on Missouri Mechanics Liens, sec. 9. (6) In the absence of any particular application of cash payments by the lien claimant, the law will apply payments on nonlienable or unsecured items, particularly where they are separable. Hanenkamp v. Hagedorn, 110 S.W.2d l. c. 829; Glencoe Lime & Cement Co. v. Ice & Fuel Co., 184 S.W. 952; Supply Co. v. Rolla National Bldg. Co., 66 S.W.2d 591. (7) Lumpsum charges have been approved by the courts in many cases. Parker v. Milling Co., 275 Mo. 1; Lumber Co. v. Kinder, 225 S.W. l. c. 1026; Planing Mill Co. v. Allison, 138 Mo. 50; Grace v. Nesbit, 109 Mo. 9; Hilliker v. Francisco, 65 Mo. 598; Kern v. Pfaff, 44 Mo.App. 29. (8) The statute requiring lienor to file a just and true account is complied with whenever it appears that the account filed has not been knowingly, intentionally or fraudulently falsified. Lumber Co. v. Miller, 117 S.W.2d l. c. 717; Brick Co. v. McTaggart, 76 Mo.App. 347; Lumber Co. v. Robson, 182 Mo.App. l. c. 625; Certiorari quashed by the Supreme Court of Missouri en banc, State ex rel. v. Reynolds, 182 S.W. 743.

Jones, Hocker, Gladney & Grand and Harry S. Gleick for respondents.

(1) The circuit court did not have jurisdiction to render a personal judgment against the estate of the Hamilton-Brown Shoe Company or the Trustee in Bankruptcy. United States Fidelity & G. Co. v. Bray, 225 U.S. 205, 56 L.Ed. 1055, 32 S.Ct. 620; Bankruptcy Act of 1898, as Amended, secs. 23(a), 57(a), 57(c), 57(d), 57(f), 57(k); Robertson v. Howard, 229 U.S. 254, 57 L.Ed. 1174, 33 S.Ct. 854; In re Kelley, 297 F. 676; Investment Registry v. Chicago & M. Elec. Co., 251 F. 510; In re Diamond's Estate, 259 F. 70; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 84 L.Ed. 876, 60 S.Ct. 628; In re Schulte-United, Inc., 50 F.2d 243; Natl. Automatic Tool Co. v. Goldie, 27 F.Supp. 399. (2) While the Mechanic's Lien Law is to be given a remedial construction, such policy cannot dispense with a reasonable compliance with the terms of the statute. Springfield Planing Mill, Lbr. & Const. Co. v. Krebs, 196 Mo.App. 432, 193 S.W. 621; Mansfield Lumber Co. v. Johnson, 91 S.W.2d 239. (3) It is essential as a requisite to the establishment of a mechanic's lien to prove a general contract for work and material for which the lien is claimed. Mansfield Lumber Co. v. Johnson, 91 S.W.2d 239; Berkshire v. Hall, 202 S.W. 414; Badger Lumber Co. v. Stepp, 157 Mo. 366, 57 S.W. 1059; Badger Lumber Co. v. Ice Co., 174 Mo.App. 414, 160 S.W. 49. (4) The just and true account required by the Mechanic's Lien Statutes is a fairly itemized account, showing what the materials are, the work that has been done and the prices charged, so that it may be seen from the face of the account that the law gives a lien therefor. The lien account contemplated by the law is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. Sec. 3551, R. S. 1939; Hummel v. Field, 216 Mo.App. 136, 256 S.W. 515; Cahill, Collins & Co. v. Orphan School, 63 Mo.App. 28; Schroeter Bros. Hdw. Co. v. Croatian "Sokol" G. Assn., 332 Mo. 440, 58 S.W.2d 995; Martin-Welch Hdw. & Plbg. Co. v. Spencer, 214 S.W. 417; Feeny v. Rothbaum, 155 Mo.App. 331, 137 S.W. 82; Baker v. Smallwood, 161 Mo.App. 257, 143 S.W. 518; Springfield Planing Mill, Lumber & Const. Co. v. Krebs, 196 Mo.App. 432, 193 S.W. 621. (5) Where a lien statement intermingles lienable and nonlienable items to such an extent that the lienable items cannot be separated from the nonlienable by an examination of the lien account itself, the lien account is not a just and true account and is invalid. Sec. 3551, R. S. 1939; Schroeter Bros. Hdw. Co. v. Croatian "Sokol" G. Assn., 332 Mo. 440, 58 S.W.2d 995, 1001; Major v. McVey, 128 S.W.2d 347; O'Brien Boiler Works Co. v. Haydock, 59 Mo.App. 653; Gauss v. Hussman, 22 Mo.App. 115; Floreth v. McReynolds, 205 Mo.App. 143, 224 S.W. 995; Knapp Bros. Mfg. Co. v. Kansas City Stockyards Co., 168 Mo.App. 146, 152 S.W. 119; Gruner & Bros. Lbr. Co. v. Nelson, 71 Mo.App. 110; Nelson v. Withrow, 14 Mo.App. 270; Hunt v. Owen Bldg. & Invs. Co., 219 S.W. 138 (6) In the absence of any particular application of cash payments by the debtor, or by the lien claimant, the court may apply such payments upon the oldest items of the account. The law cannot apply such payments to nonlienable items where the nonlienable items are not separable. Wilson-Reheis-Rolfes Lbr. Co. v. Ware, 158 Mo.App. 179, 138 S.W. 690; Campbell Glass, etc., Co. v. Davis-Page Planing Mill Co., 130 Mo.App. 474, 110 S.W. 24; Hanenkamp v. Hagedorn, 110 S.W.2d 826.

OPINION

Clark, J.

Plaintiff sued in the circuit court of the City of St. Louis to recover a judgment for a balance alleged to be due on a contract to alter, repair, remodel and renovate a certain building and to have such judgment declared and adjudged to be a mechanic's lien upon the buildings, improvements and real estate described in the petition. The court, sitting without a jury, rendered judgment for defendants and plaintiff has appealed.

There is little, if any, dispute as to the facts. The defendant corporation, being the owner of two buildings and the real estate upon which same were situate, made a contract with plaintiff corporation to alter and remodel the buildings. These buildings were located on two separate lots with a nineteen foot alley between the buildings. The contract provided for the alteration and improvement of both buildings and for connecting them with enclosed bridges or passageways at two floor levels above the alley. From time to time new improvements and changes were orally agreed to. The petition states that defendant corporation agreed to pay plaintiff "the actual cost or reasonable value" of all materials and labor furnished by plaintiff, all amounts paid by plaintiff to subcontractors, all incidental expense, and a commission or profit of ten per cent of such costs. Some of the labor was furnished by plaintiff's own employees, other labor and materials were furnished by subcontractors employed by plaintiff, either on lump sum contracts or on a time and material basis. The president of defendant corporation approved all sub-contracts and changes in plans and was kept informed as to all labor and materials used in the work. There is no serious dispute as to the reasonableness of the charges for labor or materials nor any claim that the work was not completed in a satisfactory manner. The work was begun on September 23, 1938, and completed on March 1, 1939. Plaintiff filed its lien paper in the office of the circuit clerk on April 15, 1939, and brought this suit two days later. Later the defendant corporation, on its voluntary petition, was adjudged a bankrupt by the federal district court in St. Louis and defendant Killoren was appointed trustee of the assets of said bankrupt. On May 8, 1939, plaintiff filed its petition in the federal district court and obtained an order permitting it to prosecute the present suit in the state circuit court in St. Louis. Defendant Killoren, as trustee, has entered his appearance and has filed answer.

Legal questions confronting us on this appeal are: (1) Is the plaintiff entitled to a lien under our Mechanic's Lien Law? [R. S. Mo. 1939,...