Henges Co. v. Doctors' North-Roads Bldg., Inc., RTH-ROADS

• Decision Date: 15 November 1966
• Docket Number: No. 32390,NORTH-ROADS,RTH-ROADS,32390
• Citation: 409 S.W.2d 489
• Court: Missouri Court of Appeals
• Parties: HENGES COMPANY, Inc., a Corporation, Plaintiff, v. DOCTORS'BUILDING, INC., a Corporation et al., Defendants-Respondents. Eric W. SMITH, Jr., and Robert Entzeroth, a Partnership, doing business as Smith & Entzeroth, Defendants-Cross Claimants-Appellants, v. ST. LOUIS COUNTY NATIONAL BANK and Dalton W. Schreiber, Trustee, Defendants-Respondents.

Page 489

409 S.W.2d 489

HENGES COMPANY, Inc., a Corporation, Plaintiff, v. DOCTORS' NORTH-ROADS BUILDING, INC., a Corporation et al.,

Defendants-Respondents.

Eric W. SMITH, Jr., and Robert Entzeroth, a Partnership, doing business as Smith & Entzeroth, Defendants-Cross Claimants-Appellants, v. ST. LOUIS COUNTY NATIONAL BANK and Dalton W. Schreiber, Trustee, Defendants-Respondents.

No. 32390.

St. Louis Court of Appeals, Missouri.

Nov. 15, 1966.

Motion for Rehearing and for Transfer to Supreme Court

Denied Dec. 12, 1966.

Tremayne, Joaquin, Lay & Carr, Clayton, for defendants-cross claimants-appellants.

Dubail, Judge & Kilker, St. Louis, for defendant-respondent Doctors' North-Roads Bldg., Inc.

Rader & Love, Clayton, for defendants-respondents St. Louis County Nat. Bank and another.

TOWNSEND, Commissioner.

This equity proceeding was instituted by Henges Company, Inc. in accordance with the terms of Section 429.270 V.A.M.S. for the purpose of marshalling mechanics' liens and other encumbrances on an office building owned by defendant Doctors' North-Roads Building, Inc. Joined as parties defendant, in addition to the owner, were four mechincs' lien claimants who had filed their respective statutory notices of lien and two mortgagees. After the equity suit was started one of the mortgagees, St. Louis County National Bank, hereinafter referred to simply as 'Bank', foreclosed its mortgage and at the trustee's sale purchased the property in question. Among the mechanics' lien claimants joined as defendants were the partners, Smith and Entzeroth, architects, who in due course filed their answer and a cross-bill. Subsequently the plaintiff and all mechanics' lien claimants who were joined as defendants, other than Smith and Entzeroth, settled their claims with the Bank and so pass from the scene. The record is devoid of any evidence as to the purchase price of the building at the foreclosure sale.

At the trial on the cross-bill the court held that the mechanic's lien statute was not intended by the Legislature to confer mechanic's lien rights upon one furnishing the services of an architect. The court's decree adjudged that the owner was indebted to the appellants in the sum of $18,087.69 and gave no other relief The architects appeal from the denial of their lien claim.

On April 1, 1958, the architects, appellants herein, entered into a contract 'with Doctors' North-Roads Building, Incorporated' for the performance of their professional services, using the standard form of the American Institute of Architects. The services to be performed consisted of 'the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, for architectural, structural, plumbing, heating, electrical, and other mechanical work; assistance in the drafting of forms of proposals and contracts; the issuance of certificates of payment; the keeping of accounts, the general administration of the business and supervision of the Work.' For these services the owner agreed to pay the architects a fee of six per cent of the 'cost of the Work, * * * the said percentage being hereinafter called the Basic Rate'.

Prior to the execution of the contract of April 1, 1958 the architects had prepared for the promoters of the corporation schematic designs for feasibility studies. After execution of the contract the architects refined the schematic drawings and prepared other preliminary drawings which were put in booklet form; they prepared detailed cost estimates for the construction of the building; working drawings and specifications for the job followed. The specifications encompassed sixty-three pages for construction of the building and thirteen pages for the elevators. In addition ninety-two pages were devoted to plumbing, heating, ventilating, air conditioning and electrical specifications. Following the completion of the working drawings and specifications the architects furnished the same to prospective bidders and on December 7, 1958, received the bids of various general contractors and sub-contractors.

The construction contract between the owner and the general overall contracting company was executed on December 15, 1958.

The owner's note for $500,000, payable to Bank, and the deed of trust securing the same were executed on December 30, 1958. On the same date an escrow and disbursing agreement was signed by the owner, the general contractor, the Bank and the Guaranty Land Title Company, escrowee, by the terms of which the approval of the architects was required on all bills prior to payment therefor being made out of the escrow fund.

The only Missouri case cited by the parties which involved the question of the lienability of architect's services is Raeder v. Bensberg, 6 Mo.App. 445, decided in 1879; research has disclosed no other. That case held that an architect was not entitled to a mechanic's lien on two grounds, first, that by application of the doctrine of ejusdem generis an architect was no included within the statutory description of 'every mechanic or other person who shall do or perform any work or labor' and, second, that an architect performed no work or labor 'upon' a building. We agree with appellants that, in the light of subsequently decided cases, the first ground of decision stated in the Raeder case can no longer stand; such cases have clearly shown that the general term, 'other person', is not limited to the class specifically designated, 'mechanic', or other persons like mechanics.

Appellants would find in cases cited to us parallels to the instant case in that in the cited cases the relative court allowed as part of the lien amount some items which appellants denominate supervision or superintendence or planning and engineering. We proceed to consider such cases.

In Fagan v. Brock Motor Car Co., Mo.App., 282 S.W. 135, the lien claimant contracted to install a heating system, for which he was to be paid the exact cost to him of the equipment plus twenty per cent, the overall cost not to exceed a named figure. It was held that the twenty per cent was includable in the amount of the claimant's lien. In Tual v. Martin, 228 Mo.App. 30, 66 S.W.2d 969, the agreed contract price for the erection of a building was stated in terms of the cost of the materials to the contractor plus $1.00 per hour for the contractor's own labor as a carpenter plus ten per cent; it was held that the lien covered the sum total of the recited elements. It is to be noted that in each of these cases the contract was fully performed by the contractor, that in each case the claimant furnished the materials which went into the structure and that the lien amount was held to be properly computed at the precise contract amount.

In contrast to the last two cases, the claim of lien in Fuhler v. Gohman & Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482, and in Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512, was based not on a contracted price but upon quantum meruit--the reasonable value of work and labor. In the Fuhler case, the claim of lien set out various items of services which the claimant furnished through sub-contractors or employees and stated a certain value for each; to the sum total of such values the claimant added ten per cent for overhead and ten per cent for profit 'over actual cost'. The ten per cent additions were held properly included in the total amount of lien claim. The same situation existed in the Leach case. In each of these cases the claimant was responsible for the furnishing of labor to the structure through sub-contractors or employees, did furnish labor for the structure in this manner and in the course of doing so devoted his own personal attention to the superintendence of the subcontractors and employees in the course of their performing their jobs, thereby contributing his own efforts in the course of construction. Since, in the four cases cited, the relative court approved the added percentages, and in doing so, sometimes approved the term, 'overhead', and sometimes 'superintendence' and sometimes 'profit', the appellants would find authority for their proposition that the trial court erred in concluding that Chapter 429 of the statutes 'is not intended by the legislature to include the services of an architect'. We find no parallelism between the cited cases and the present one; the cases are so different factually that they cannot be said to be made comparable by the fact that the claims allowed included some compensation for superintendence. In the instant case the architects furnished no materials; they were under no contractual duty to furnish any and in connection therewith to supervise their installation. Neither did they furnish the labor of others upon the building; they were under no obligation to furnish such labor of others and to oversee the proper performance of duty by such others. The cited cases cannot be regarded as relevant to our present problem, for in each of them the claimant satisfied the statutory requirement of performing 'any work or labor upon, or furnish any material * * * for any building, erection or improvements upon land * * *'; in them the superintendence factor is pertinent only to the problem of determining the contract price or the reasonable value of the labor or materials so furnished.

The argument of counsel intermingles the preparation of plans and specifications with the architect's supervision of construction as the building goes up as if this combination constituted one unitary whole, thereby giving a lien for the full contract fee. Such comprehensive concept would thereby give a lump sum lien overall for work done in connection with construction and for work done long before construction started. It is our opinion that proper analysis requires the separate consideration of these elements. Cf. Edgar v. Salisbury, 17 Mo. 271. Consideration is given first to the question of the lienability...