Hilton v. Universal Construction Co.
| Decision Date | 02 December 1919 |
| Citation | 216 S.W. 1034,202 Mo.App. 672 |
| Parties | R. L. HILTON, Plaintiff, SUBURBAN SUPPLY COMPANY, LUMAGHI COAL COMPANY, and LORIMER & GALLAGHER COMPANY, Intervenors and Respondents, v. UNIVERSAL CONSTRUCTION COMPANY and the CITY OF ST. LOUIS, Defendants, UNIVERSAL CONSTRUCTION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. W. M Kinsey, Judge.
AFFIRMED.
Judgment affirmed.
Kinealy & Kinealy for appellant.
(1) There can be no mechanic's lien against public works. Abercrombie v. Ely, 60 Mo. 23. (2) The purpose of the statutory and contract provisions for the payment of labor and materials on public works is to give the claimant the same protection he would have were the work private and therefore lienable. St. Louis etc., v. Construction Co., 174 Mo.App. 555; City of Alpena v. Title Guar Co., 159 Mich. 329. (3) Tools and appliances of the contractor are not within the purview of mechanic's lien statutes. 28 Cyc. 1041, tit. Munic. Corps.; Kansas City to use v. Youmans, 213 Mo. 151. (4) Coal used for fuel in hoisting engines, excavators, etc., are not lienable nor within the protection of the public works contract here in question. U. S. to use, v. City Tr., S.D. & Sur Co., 23 App. D. C. 153; Sampson v. Commonwealth, 202 Mass. 326; Thomas v. Commonwealth, 215 Mass. 369; Philadelphia v. Malone, 214 Pa. 90; City of Alpena v. Title Guar. Co., 168 Mich. 350; Schultz v. Quereau Co., 210 N.Y. 257; Carnegie Fuel Co. v. Interstate Tr. Ry. Co., 165 Wis. 46; Cin. etc., R. R. Co. v. Shera, 36 Ind.App. 315; Niagara Oil Co. v. McBee, 45 Ind.App. 576; Holter Hdw. Co. v. Ontario Min. Co., 24 Mont. 198; 33 Cyc. 468, tit. Railroads. A lumber materialman must show the value of the lumber that actually entered into the structure. Fitzpatrick v. Thomas, 61 Mo. 512; Schulenberg v. Prairie Home Inst., 65 Mo. 295; Deardoff v. Everhart, 74 Mo. 37; Lumber Co. v. Ware, 150 Mo.App. 61.
John B. Denvir, Jr. for respondent.
(1) Coal used for fuel in hoisting engines, excavators, etc., is chargeable against public work like that in question here, because it is material which entered into the construction of the sewer. Johnson v. Starrett, 127 Minn. 138; City Trust & C. Co. v. U. S. to use of Bryant, 147 F. 155; United States v. U. S. F. & G. Co., 83 Vt. 278; Rapauno Chemical Co. v. G. & N. Ry. Co., 59 Mo.App. 1; Kansas City to use v. Youmans, 213 Mo. 151; National Surety Co. v. U.S. 228 F. 577; U. S. to Use v. Lowrance, 252 F. 122; U. S. to Use v. Lowrance, 236 F. 1008-9; Hercules Powder Co. v. Knoxville, R. R. Co., 83 S.W. 354; Zipp v. Fidelity & Deposit Co., 73 A.D. 20; Beal v. Fidelity & Deposit Co. , 76 A.D. 526; Poland, Trustee, v. Lamville Valley R. R. Co., 52 Vermont 145; James v. Greenville Lumber Co., 122 N.C. 160; Pocahontas Coal Co., v. Electric Co., 118 N.C. 232; Annotations to Schultz v. Juerean, 1915 E. L. R. A., p. 987 et seq.; Annotations to Standard Boiler Works v. National Surety Co., 43 L. R. A. (N. S.), p. 167 et seq.; Powder Co. v. Greenwich & J. Ry. Co., 76 N.E. 153. (2) The findings of fact by the Referee stand as the verdict of a jury, and having been confirmed and approved by the court, are not open to review, and there being no seriously controverted legal propositions, the judgment on the lumber claim of the Lorimer Gallagher Company must be affirmed. Citizens Coal & Mining Co. v. McDermott, 109 App. 306; Rhodes v. Guhman, 156 Mo.App. 362; Furstenfeld v. Furstenfeld, 152 Mo.App. 733; Citizens Nat. Bk. v. Donnell, 172 Mo. 384; Tufts v. Latshaw, 172 Mo. 359.
Becker, J., not sitting.
This is a suit in the nature of an equitable garnishment against the Universal Construction Company and the City of St. Louis for materials sold to a sub-contractor of a prime contractor for public work. The suit was instituted in behalf of the Hunkins-Wilkins Lime & Cement Company and R. L. Hilton, alleging that the city entered into a contract with the defendant Universal Construction Company for the construction of a public sewer, which contract provided that the city should pay for same on monthly estimates of the amount of work performed and should retain 15 per cent until the completion of the work; that the plaintiffs furnished materials to a sub-contractor on the work, J. W. Farley & Company, and to their trustee, they having afterwards been declared a bankrupt. The prayer of the petition was for an order on the city to pay out of the retained percentage in its possession the amount due the plaintiffs, the sewer having been completed.
The suit as to the original plaintiffs was afterwards dismissed on their applications and they were permitted to withdraw, their claims having been paid and discharged. In the meantime, however, intervening petitions were filed in the suit in behalf of the Suburban Supply Company, the Lorimer & Gallagher Company and Lumaghi Coal Company.
In their intervening petitions the Suburban Supply Company and the Lumaghi Coal Company repeat substantially the allegations contained in the plaintiffs petition, and allege that they had furnished to the subcontractor Farley & Company, coal which was used by said Farley & Company for the construction of said sewer, and that their claims against said sub-contractor remain unpaid; the Suburban Supply Company alleging that there was due to it $ 425.74, and the Lumaghi Coal Company alleging that the value of the coal furnished by it was $ 822.06.
The Lorimer & Gallagher Company by its intervening petition repeat substantially the allegations of the plaintiff's petition, and alleges that it furnished material in the shape of lumber to the sub-contractor of said sewer of the reasonable value of $ 359.63, which lumber was used in the construction of said sewer, and which sum remains due and unpaid.
All of these intervenors pray for an order on the city to pay to them out of the fund in the city's possession belonging to the Universal Construction Company the amounts claimed in their respective intervening petitions.
The defendant, Universal Construction Company, denied generally the allegations of the intervening petitions.
The cause, upon motion of the plaintiffs, was referred to a Referee, who after hearing the evidence, filed a report recommending that as to the claims of the Suburban Supply Company and Lumaghi Coal Company a judgment be rerdered in favor of the defendants, and as to the claim of Lorimer & Gallagher Company for furnishing the lumber it was recommended that a judgment be rendered in favor of interventor, Lorimer & Gallagher Company, in the sum of $ 358, being the reasonable value of the lumber furnished, and that the same be paid out of the money in the hands of the City of St. Louis.
On exceptions being duly filed to the Referee's report, the Circuit Court overruled the exception filed by the defendant, Universal Construction Company to that part of the report recommending judgment in favor of Lorimer & Gallagher Company, and sustained the exceptions filed on behalf of the Suburban Supply Company and the Lumaghi Coal Company, and thereupon entered judgment in behalf of these intervenors for the amounts reported by the Referee, being the reasonable value of the materials furnished as found by him, and ordered that the intervenors be paid their respective claims out of the fund adjudged to be due Universal Construction Company from the City of St. Louis.
After taking the customary steps the defendant Universal Construction Company, appealed the cause to the Supreme Court. That court transferred the cause to this court, holding that the amount involved was within our jurisdiction, and that the city was a mere nominal party and did not appeal. [Hilton et al. v. Universal Const. Co. et al., not yet officially reported, but see 212 S.W. 867.]
The contract under which the work was let is a combination contract and bond between the Universal Construction Company, the City of St. Louis, and the Fidelity & Deposit Company which signed as security for the faithful performance of the contract on the part of the Universal Construction Company. By this contract and bond it is provided, that if the contractor shall fail to pay the laborers employed on the work or to pay for materials used therein, the Sewer Commissioner may withhold his certificate for everything in excess of 85 per cent of the value of the work done until he shall be satisfied that all claims for labor or materials are paid. In addition, the said contract and bond provides, that the Universal Construction Company shall pay the proper parties all amounts due for material and labor used and employed in the performance thereof. (Italics ours).
There is little dispute in the record as to the essential facts. As to the coal claims of the Suburban Supply Company and Lumaghi Coal Company, it appears from the record that this coal was furnished and delivered by the interventors to a sub-contractor, Farley & Company, and was used by the said subcontractor for making steam in locomotives drawing small cars, carrying materials used in and about the sewer in question, upon a track running from one end of the sewer to the other, and also for carrying dirt along the side of the sewer as the dirt was taken the cars, which cars were moved from one place to another, along the sewer, that is, the dirt was placed on the from the trench with a steam shovel and dumped on to cars with the steam shovel and taken from the trench at one place and moved to another place and dumped back into the sewer from the cars after the masonry and brickwork was completed. The coal was also used for operating stationary engines which furnished the power for the steam shovel and...
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