Hertel Elec. Co. v. Gabriel, 7452

CourtCourt of Appeal of Missouri (US)
Citation292 S.W.2d 95
Docket NumberNo. 7452,7452
PartiesHERTEL ELECTRIC COMPANY, Inc., Plaintiff-Respondent, v. Fred GABRIEL, Defendant, and R. L. Butterworth, Defendant-Appellant.
Decision Date07 June 1956

Breuer & Northern, Rolla, Robert M. Zeppenfeld, St. Louis, for R. L. Butterworth, defendant-appellant.

Hale W. Brown, Kirkwood, T. A. Shockley, Waynesville, for plaintiff-respondent.

STONE, Judge.

In this action to establish a mechanic's lien, plaintiff, Hertel Electric Company, Inc., as a subcontractor, sought a personal judgment for $482.28 and interest against defendant Fred Gabriel, 'as original and general contractor,' and prayed 'a mechanic's lien against the buildings, appurtenances, improvements and land' described in plaintiff's petition and owned by defendant R. L. Butterworth. The jury verdict found the issues for plaintiff and against defendant Gabriel in the sum of $585.58 and that plaintiff was 'entitled to a mechanic's lien against the real estate' of defendant Butterworth situate in Pulaski County, Missouri, and described in the verdict. The judgment was that plaintiff 'have and recover of and from the defendants the sum of $585.58 as debt and damages aforesaid assessed by the jury.' No lien was decreed. (All emphasis herein is ours.)- The first complaint of the sole appealing defendant, R. L. Butterworth, that a personal judgment should not have been entered against her obviously is wellfounded. Plaintiff did not seek, the evidence did not justify, and the jury verdict did not permit, any such judgment. As in other classes of actions [McIlvain v. Kavorinos, 358 Mo. 1153, 1157, 219 S.W.2d 349, 351(7)], the judgment in a mechanic's lien suit must be supported by, and must conform to, the verdict in all substantial particulars. Consult State ex rel. Erbs v. Oliver, 361 Mo. 836, 840, 237 S.W.2d 128, 129-130(1); Brooks v. Blackwell, 76 Mo. 309, 310(2); Walkenhorst v. Coste, 33 Mo. 401, 403(2); Croatian-American Bldg. & Loan Ass'n v. Casper, Mo.App., 54 S.W.2d 773, 775; 57 C.J.S., Mechanics' Liens, Sec. 323, p. 1009. The personal judgment against defendant Butterworth clearly was unauthorized and cannot stand.

Plaintiff's claim is for 'electrical labor, materials, and supplies' furnished for and used at the Tulane Trailer Camp near Fort Leonard Wood in Pulaski County, Missouri. Early in 1951, the tract of 6.19 acres, on which the trailer camp subsequently was located (hereinafter referred to as the tract), was purchased by Harry A. Wachter of Webster Groves, Missouri, who, however, caused the record title to be conveyed to his daughter, defendant Butterworth. According to Wachter, he purchased the tract after a discussion with defendant Gabriel in which Gabriel said 'he thought he had a good proposition to start a trailer camp down at Fort Leonard Wood and, if I (Wachter) would buy the ground and furnish the money to build it, he would do the construction of it and take half of the rent for his pay.' The precise nature of the relationship between Gabriel and Wachter is not determinable with assurance on the record before us, but Wachter agreed upon trial that he had purchased the tract and was 'supposed to pay the bills' incident to establishment of the trailer camp. About the first of April, 1951, Gabriel talked with Fred Hertel, president of plaintiff corporation, about 'some electrical work' to be done at the trailer camp. On April 26, 1951, Hertel sent to the camp four electricians in a pickup 'loaded down with enough equipment to do the job'; and, on June 27, 1951, defendant Gabriel purchased additional material from plaintiff which was used at the trailer camp.

Pointing out that a mechanic's lien may be sustained only as an incident to a personal judgment against the one with whom the contract for the labor or material was made, who himself either is the owner or his authorized agent or stands in a contractual relationship with the owner or some contractor under him [Macklind Inv. Co. v. Ferry, 341 Mo. 493, 498, 108 S.W.2d 21, 23(3); Braun v. Graham, Mo.App., 211 S.W.2d 494, 496(5); Reese v. Cibulka, Mo.App., 68 S.W.2d 902, 904(3)], defendant Butterworth here insists that plaintiff could not have a lien against her property, because defendant Gabriel (with whom plaintiff contracted) did not own the trailer camp and 'never had any dealings' with her. But, defendant Butterworth ignores the important fact that, although, at all times herein material, the bare record or legal title has reposed in her, her father, Harry A. Wachter, who purchased the tract, has held the actual beneficial or equitable title thereto. Defendant Gabriel, against whom plaintiff obtained a personal judgment, undoubtedly was the authorized agent of, or occupied a contractual relationship with, Wachter; and, we have no doubt but that Wachter's beneficial and equitable ownership of the tract afforded a foundation for the lien sought by plaintiff, for it has long been settled that one who has either legal or equitable title to realty is an 'owner' thereof within the contemplation and meaning of the mechanic's lien law. Section 429.150; Sawyer-Austin Lumber Co. v. Clark, 172 Mo. 588, 596, 73 S.W. 137, 139; Westport Lumber Co. v. Harris, 131 Mo.App. 94, 103, 110 S.W. 609, 611. See also Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 112, 106 S.W.2d 451, 457(3); O'Leary v. Roe, 45 Mo.App. 567, 572; Jodd v. Duncan, 9 Mo.App. 417, 420. (All statutory references are to RSMo 1949, V.A.M.S.)

Defendant Butterworth's next complaint is directed to the description of the land to be impressed with a lien. Recognizing that, since the buildings, improvements and land on which plaintiff sought a lien were outside 'any town, city or village,' plaintiff could obtain a lien on the land only 'to the extent of one acre' [Section 429.010], plaintiff, throughout the instant proceeding, i. e., in its preliminary notice of lien filed with the recorder [Section 429.110], in its lien claim filed with the circuit clerk [Section 429.080], in its petition instituting suit [Section 429.170], and in its principal verdict-directing instruction to the jury, referred to the land on which the improvements were made as 'one acre of land being part of a larger tract of land being described as follows, to-wit,' following which, in each instance, the 'larger tract' of 6.19 acres was described by metes and bounds. In the jury verdict, it was found that plaintiff was entitled to a mechanic's lien on 'one acre of land situated in Pulaski County, Missouri, and being a part of a larger tract of land, said one acre being more particularly described as follows,' but the description then following was not of 'one acre' but was the same description (as had been used throughout the proceeding) of the 'larger tract' of 6.19 acres. The judgment simply referred to the jury finding 'that plaintiff have mechanic's lien against the lands described in petition,' although, as we have noted, the judgment did not purport to impress a lien upon any land. The record reflects no effort to fix or define the boundaries of the one acre upon which a lien is sought.

The lien claim is not itself a pleading and, broadly stated, '(a)ll that is required therein is a substantial compliance with the statute [Section 429.080] declaring what that claim shall contain.' Mitchell Planing-Mill Co. v. Allison, 138 Mo. 50, 57, 40 S.W. 118, 121. The language of the statutory requirement that the lien claim include 'a true description of the property, or so near as to identify the same' [Section 429.080] suggests that 'possible imperfections' in the description were anticipated by the lawmakers [Oster v. Rabeneau, 46 Mo. 595, 598], perhaps because it was contemplated that claimants, unschooled in the law, might prepare their own preliminary papers. DeWitt v. Smith, 63 Mo. 263, 265. Compare Banner Lumber Co. v. Robson, 182 Mo.App. 611, 622, 168 S.W. 244, 245. Thus, where the rights of innocent third parties have not intervened, 'the courts have hesitated to hold a misdescription of property fatally defective to the enforcement of the lien' [Independent Plumbing & Heating Supply Co. v. Glennon, Mo.App., 287 S.W. 824, 825; Chance v. Franke, 350 Mo. 162, 167, 165 S.W.2d 678, 680]; and, 'the true doctrine' is that, 'if the description is specific and definite enough, so as to enable one familiar with the locality to identify the premises intended to be covered by the lien, it will be sufficient.' Bradish v. James, 83 Mo. 313, 318(2); Rall Bros. v. McCrary, 45 Mo.App. 365, 370-371(2). 1

However, such indulgent pronouncements with respect to inaccurate, loose or general descriptions of property obviously have been limited, in intent and application, to descriptions prior to verdict and judgment. So, it has been said that '(i)f the claim comes into court, it is then time enough to require all the particulars that may be necessary to maintain or defend the action' [Mitchell Planing-Mill Co. v. Allison, supra, 40 S.W. loc.cit. 121; Powers & Boyd Cornice & Roofing Co. v. Muir, 146 Mo.App. 36, 49, 123 S.W. 490, 494]; that, when the lien claim 'fails to describe the exact quantity of ground charged with a lien, but includes the quantity in the description of a larger tract, the lienable part will be charged, and the court will ascertain it and give judgment accordingly' [Kirkwood Mfg. & Supply Co. v. Sunkel, 148 Mo.App. 136, 143, 128 S.W. 258, 260]; and that, when the original petition describes a tract larger than one acre, plaintiff may 'modify his demand' in an amended petition 'so long as the amended description keeps within the bounds included by the original description.' Powers & Boyd Cornice & Roofing Co. v. Muir, supra, 123 S.W. loc.cit. 494. 2 And, a number of cases indicate that, where the rights of innocent third parties have not intervened [contrast Ranson v. Sheehan, 78 Mo. 668, 673(2)] and the property description in the lien claim or original petition is inaccurate...

To continue reading

Request your trial
27 cases
  • Hood v. M. F. A. Mut. Ins. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 28, 1964
    ...another trial. Kickham v. Carter, Mo., 314 S.W.2d 902, 907; Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 792(11); Hertel Electric Co. v. Gabriel, Mo.App., 292 S.W.2d 95, 102(15). Accordingly, the judgment for plaintiff is set aside, and the cause is remanded for RUARK, P. J., and HOGAN, J., ......
  • Continental Casualty Co. v. Allsop Lumber Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 22, 1964
    ...and that service of the preliminary notice is a condition precedent to the right to sue to enforce the lien. Hertel Elec. Co. v. Gabriel, 292 S.W.2d 95, 101-102 (Mo.App.1956). It is apparent from these statutes that a subcontractor, such as Allsop, is to give ten days' preliminary notice be......
  • Williams v. Cass
    • United States
    • Court of Appeal of Missouri (US)
    • October 24, 1963
    ...Therefore, upon trial plaintiffs could not have been entitled to a judgment impressing a lien. Sec. 429.010; Hertel Electric Co. v. Gabriel, Mo.App., 292 S.W.2d 95, 99-100. But since, as plaintiffs here point out, they might have been entitled to a personal judgment against defendants, even......
  • Home Bldg. Corp. v. Ventura Corp., 59980
    • United States
    • United States State Supreme Court of Missouri
    • July 24, 1978
    ...which held that a mechanic's lien may not be imposed on municipally owned water works. It also cites Hertel Electric Co. v. Gabriel, 292 S.W.2d 95 (Mo.App.1956), for the proposition that by its contract to purchase it became the equitable owner for mechanic's lien Assuming, for purposes of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT