Hammond v. Darlington

• Decision Date: 27 December 1904
• Citation: 109 Mo. App. 333,84 S.W. 446
• Court: Missouri Court of Appeals
• Parties: HAMMOND v. DARLINGTON.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 446

109 Mo. App. 333

HAMMOND v. DARLINGTON.^*

St. Louis Court of Appeals. Missouri.

December 27, 1904.

MECHANICS' LIENS — DESTRUCTION OF BUILDING — DAMAGES — INSTRUCTIONS — DESCRIPTION OF LAND — NOTICE TO PURCHASER — EVIDENCE.

1. Plaintiff established a mechanic's lien on a building erected on leased land. Defendant, purchaser thereof from the lessee, demolished and removed it. Held, that an instruction that the damages should be assessed at such amount, not exceeding the sum named in the petition, as the building was worth at the time of its destruction, was not erroneous; no request being made to present the element of cost attending removal of the building.

2. The description of the land in proceedings to establish a mechanic's lien is sufficient, though not complete or precise, if it points out and indicates the premises, so that the land can be found and identified.

3. One purchasing a lease of land on which buildings are in the course of erection for the lessee is chargeable with notice that a mechanic's lien may be asserted for labor and material entering into the construction.

4. Though one purchasing land while a building is being constructed on it is not made a party to proceedings to establish a mechanic's lien for labor and material entering into such construction, the proceedings, while not binding on him, are admissible in evidence and prima facie proof against him in an action against him by the plaintiff in the lien proceedings for damages because of his destruction of the building.

5. Plaintiff obtained a judgment in a proceeding to establish a mechanic's lien for erection of a building in which the only defendant was the owner of the property when the work was begun. Held, in an action for destruction of the building against one who purchased it during its erection, that plaintiff, to show jurisdiction of the court in the lien proceedings, need only show by the files in such proceedings notice of the order of publication for defendant therein, with the return showing its execution.

Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.

Action by F. B. Hammond against Evans R. Darlington. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. D. & Geo. V. Reynolds, for appellant. J. Hugo Grimm, for respondent.

REYBURN, J.

This action was commenced before a justice of the peace upon the following declaration of right of action: "Plaintiff states that defendants, Evans R. Darlington, Jas. G. Berryhill, and S. L. Berryhill, were at the times hereinafter mentioned copartners doing business under the name and style of E. R. Darlington & Co., and being engaged in the lumber business in the city of St. Louis, Mo. Plaintiff states that between the 12th day of April, 1902, and the 24th day of May, 1902, plaintiff, as a carpenter and builder, did perform certain work and labor upon a certain theater building, twelve booths, stable, ticket office, fences, and seats at the request of one Carrigien Boshgaotur, who was lessee thereof, upon the following described lot of ground in the city of St. Louis, to wit: A lot or tract of ground in city block No. 4595 of the city of St. Louis, fronting 140 feet, more or less, on Clayton avenue, by a depth of 120 feet, more or less; said lot being the southeast corner of said city block and fronting on the north line of Clayton avenue, between Tamm avenue and Kraft avenue. Plaintiff further states that he furnished all the work and labor on said theater, booths, stable, ticket office, fences, and seats, and that under the laws of the state of Missouri he became entitled to a mechanic's lien upon said improvements for the work and labor done by him; that the work and labor done by him upon said improvements as aforesaid was reasonably worth the sum of $652.35; that there had been paid thereon the sum of $75, leaving due plaintiff a balance of $677.35, for which he filed a lien in the office of the clerk of the circuit court of the city of St. Louis, and on the 26th day of August, 1902, and thereafter, on August 27, 1902, brought his suit to establish said lien to the extent of $499.35, before Robert Walker, Esq., a justice of the peace of the city of St. Louis, Mo.; and that said suit to establish said mechanic's lien was duly tried and heard before said Robert Walker, Esq., who did on the 22d day of October, 1902, render judgment in said cause establishing said lien for the sum of $499.35. Plaintiff further states that defendants Evans R. Darlington, J. G. Berryhill, and S. L. Berryhill furnished a portion of the lumber which was used in the construction of the theater booths and improvements above described, and were aware of the fact that plaintiff had furnished work and labor in the construction of said improvements and was entitled to a lien upon the same for the value of his work and labor. But plaintiff states that defendants Evans R. Darlington, J. G. Berryhill, and S. L. Berryhill, disregarding his right and interest in the said improvements, after they were erected and before plaintiff had established his lien against the same, did unlawfully cause the same to be taken apart and removed, taking said lumber into their possession, and thus entirely destroying the buildings upon which plaintiff had a right of lien as aforesaid. Plaintiff further states that said improvements were reasonably worth the sum of $1,000, and that, as plaintiff was the only person who established his right of lien against said improvements, the same were ample security for his claim, and but for the wrongful act of the defendants would be ample to satisfy his demand in full. But plaintiff states that by defendants' action in destroying said property he had been deprived of his entire security, and damaged to the full extent of his demand against said property, to wit, $499.35. Wherefore, plaintiff prays judgment against defendants for said sum of $499.35 and his costs." Defendants James G. and S. L. Berryhill not being found, the suit was dismissed as to them, and trial proceeded against the remaining defendant, Darlington, from judgment in whose favor before the magistrate plaintiff appealed to the circuit court, where, on retrial to a jury, a verdict for $499.35 was found, from judgment on which defendant appealed.

At the trial in the circuit court, defendant by his counsel made oral denial of all statements of plaintiff's petition, making no written answer, and claiming that the statement showed no cause of action against him at all, and none within the jurisdiction of the justice, and objected to any evidence. The proof disclosed the following state of facts: In April, 1902, one Carrigien Boshgaotur, hereafter described as the lessee, leased from the Amusement Company for three years a lot situated on the north side of Clayton avenue, between Kraft and Tamm avenues, 140 feet front by 120 feet deep, extending northwardly, and proceeded to erect thereon a building for theatrical exhibitions, booths stables, ticket office, and like edifices, for which he contracted with this respondent, a contractor and builder, for the labor; the materials to be furnished by such lessee. Respondent completed the work toward the end of May, of the value, or contract price, of $652.35, on which he received a payment of $75, and filed a lien in the clerk's office of the St. Louis circuit court for the balance unpaid, and, by voluntary credit reducing the amount within the jurisdiction of a justice, brought suit in such a court on August 27, 1902, returnable and set for September 18, 1902, when an order of publication was obtained, and on the 7th of October a judgment for $499.35 was rendered, and adjudged a lien upon the improvements and the leasehold interest of defendant in the realty. Darlington & Co., a copartnership composed of the original defendants named, had furnished a considerable part of the lumber employed in the construction of the...