Hilliker v. Francisco

• Decision Date: 31 October 1877
• Citation: 65 Mo. 598
• Parties: HILLIKER ET AL. v. FRANCISCO ET AL., APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 598

HILLIKER ET AL.

v.FRANCISCO ET AL., APPELLANTS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Circuit Court--HON. SAMUEL L. SAWYER, Judge.

This was a suit to enforce a mechanic's lien brought by R. W. Hilliker and Joel F. Kinney, as partners doing business under the name and style of Hilliker & Kinney, against Francisco, Switzer & Jeffers and the First National Bank of Kansas City. The bank was the owner of the building sought to be charged with the lien; the other defendants were contractors for its erection, and plaintiffs were sub-contractors for the stone-work. The contract sued on ran in the name of “R. W. Hilliker and J. F. Kinney, of the firm of Hilliker & Kinney,” as parties of the first part, and was signed “Hilliker & Kinney.” The first item of the account filed with the clerk of the circuit court, for a mechanic's lien, was as follows:

“To Junction City stone furnished for First National Bank building, as per contract, and labor setting same

$7790 00”

The petition was in the usual form. The bank filed a separate answer denying the allegations in the petition, and alleging that there was a defect of parties plaintiff, and in another count set up a settlement between appellant and one of plaintiffs, Joel F. Kinney, of all matters in controversy in the suit. Evidence was offered to prove the settlement. It tended to show that the consideration for the settlement was a credit for $1,800 on a judgment held by the bank against Kinney, and a receipt for $1,400 in full discharge of an account claimed by the bank to be due to it from Hilliker, Kinney and one Phelps, for which a suit was then pending.

The counsel for plaintiffs objected to the evidence as incompetent and irrelevant, because the indebtedness appeared to be that of other parties than the plaintiffs. During the argument on the objection the court suggested that it would be necessary to show that Phelps was a partner with Hilliker and Kinney in the contract sued on, before the settlement could be made available as a defense; and if such partnership could be shown, the settlement would be immaterial, as in that case there would be a defect of parties plaintiff, and plaintiffs could not recover. Counsel for both parties acquiesced in the suggestion as to the defect of parties plaintiff, and defendant then abandoned the count in his answer, setting up the settlement, and continued the trial of the case, introducing evidence to show that Phelps was a partner in said transaction, and on that point only.

The court, at the instance of the plaintiff, gave the following among other instructions:

4. It is wholly immaterial in this case, and does not affect the plaintiffs' right to recover herein what the terms of the contract were between the First National Bank of Kansas City and Francisco, Switzer and Jeffers for erecting the bank building, or what price said Francisco, Switzer and Jeffers were to receive for the same or the stone work put into said building.

7. If the jury find from the evidence that Francisco Switzer and Jeffers, while the work of building the building described in the petition was going on, executed the written contract offered in evidence by plaintiffs in this case, the defendants are estopped from denying that the contract sued on was made by them with Hilliker and Kinney as partners under the firm name of Hilliker & Kinney, and from asserting that Cicero Phelps had any interest in said contract, and in that case it makes no difference whether Cicero Phelps was at the time of making the contract sued on, or during the progress of the work, became a partner with Hilliker and Kinney in the stone business or not.

Upon the instructions the jury found for plaintiffs, and judgment was entered against the contractors and for the enforcement of the lien against the building. There was no judgment against the bank by name. The bank alone appealed.

Tomlinson & Ross for appellant.

1st. Testimony as to the settlement made between the appellant and Kinney was competent and relevant. Kinney had a right to make the settlement, whether the indebtedness to appellant was that of Hilliker and Kinney, or Hilliker, Kinney and Phelps, for they were severally liable to the appellant. Austin v. Feland, 8 Mo. 309; Rent v. Rogers, 24 Mo. 306; Mortland v. Holton, 44 Mo. 58. At the suggestion of the court, acquiesced in by plaintiffs' counsel, appellant abandoned a good defense, relying on proving that Phelps was interested as a partner in the transaction, which is the foundation of the action, and tried the cause on this theory. When appellant had no opportunity to be heard on the third defense, its counsel were first informed that what it had been led by the court to believe was a good defense was no defense at all. This operated a surprise on appellant and entitled him to a new trial. Morrow v. Hatfield, 6 Humph. 108; LeFleming v. Simpson, 1 Man & Ry. 269; Boyce v. Mooney, 40 Mo. 104.

2nd. The doctrine of estoppel can not be made to apply to the case. Appellant never made any admission inconsistent with the evidence offered; never made any admission to plaintiffs at all, and did not mislead them in any way. Newman v. Hook, 37 Mo. 207.

3d. Phelps was a necessary party to the suit. Wag. Stat. 999 § 2; Id. 909 § 8, 1000 § 4, 1001 § 6.

A dormant partner is a necessary party under the code. Secor v. Keller, 4 Duer 416; McKenzie v. L'Amoureux, 11 Barb. 516; Barber on Partners, 426, 427; Parsons on Partnership, 428; Wilson v. Wallace, 8 S. & R. 53; Bailey v. Inglee, 2 Paige, 278. For defect of parties plaintiff all may demur (or answer if defect does not appear on face of pleading.) Scranton v. The Bank, 33 Barb. 527; 30 How. Pr. 231; Howard v. McKowen, 2 Brown, Penn. 150. The mechanics' lien law does not change the relation of parties to contracts. Rockwood v. Walcote, 3 Allen 458.

4. There was no cause of action stated in the petition. The account filed was not a just and true account within the meaning of the statute. What purports to be an account, is not such, but a price agreed upon for the work. Russell v. Bell, 44 Pa. St. 47; Lee v. Burke, 66 Pa. St. 336

Wm. E. Sheffield for respondent.

The bank was not a necessary party to the suit, and there being no judgment against it, it could not take an appeal; the judgment was against the contractors. Schæffer v. Lohman, 34 Mo. 68; Acts 1856-7 p. 668; Wag. Stat. 908 § 3; Wibbing v. Powers, 25 Mo. 599; Ashburn v. Ayres 28 Mo. 75; Wescott v. Bridwell, 40 Mo. 146; Miller v. Faulk, 47 Mo. 262; Horstkotte v. Menier, 50 Mo. 158. It is the duty of the original contractor to protect the property against liens, and if he fails to do so, the owner has his remedy against him; but cannot defend against the lien.

2. The written instrument claimed to be the settlement which the First National Bank had from Kinney, bearing date Nov. 12, 1874, and which was used upon the hearing of the motion for a new trial, shows upon its face that the claims pretended to have been paid by the settlement, were not against Hilliker and Kinney at all; but were claims against Phelps and Kinney individually, and Hilliker, Kinney & Phelps. Ackley v. Staehlin, 56 Mo. 558; Flanagan v. Alexander, 50 Mo. 50; Price v. Hunt, 59 Mo. 263.

3. There was no ground for a new trial on the score of surprise. State v. Schar, 50 Mo. 393.

1. MECHANICS' LIEN: owner may appeal from judgmentagainst his property.

HENRY, J.

The First National Bank of Kansas City was, by plaintiffs, made a defendant, but they now insist that the bank has no right of appeal from the judgment against its property. Sec. 9, page 910, Wag. Stat., provides that “in all suits under this chapter, the parties to the contract shall, and all other persons interested in the matter in controversy and the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.” Respondents contend that the bank was not a necessary party to the proceedings, and therefore has no right to appeal from the judgment. Although not a necessary party, it will not be denied that the bank was a proper party. Virtually there are two causes of action stated in the petition; one against the contractors, to which the owner is neither a necessary nor a proper party; the other against the owner to subject its property to the payment of the contractor's debt, and the bank would not have been...