Hoene v. Edward Gocke Real Estate Co.
| Decision Date | 03 March 1936 |
| Citation | 91 S.W.2d 137,230 Mo.App. 175 |
| Parties | JOHN F. HOENE, ADMINISTRATOR C. T. A. OF ESTATE OF BERTHA SPORING, DECEASED, APPELLANT, v. EDWARD GOCKE REAL ESTATE CO., A CORPORATION, RESPONDENT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis.--Hon. Frank C O'Malley, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
John T Sluggett, Jr. for appellant.
(1) The defendant's (respondent's) agreement to pay and satisfy any liens that might be placed on the property was a part of the contract by which plaintiff (appellant) purchased the deed of trust from the defendant (respondent). Wind v. Bank of Maplewood, 58 S.W.2d 332. (2) The contract pleaded and proven is not within the statute of frauds because: (a) There was no promise or obligation on the part of the makers of the deed of trust to pay or satisfy any mechanics' liens that might be placed against the real estate after the execution of the deed of trust. (b) The defendant's (respondent's) oral promise was an original promise and a part of the contract by which plaintiff (appellant) purchased the deed of trust from defendant (respondent). (c) The contract was fully performed on one side by plaintiff (appellant) and partially performed on the other side by defendant (respondent). Missouri State Life Insurance Company v. Early, 13 S.W.2d 1097; Walker v. Whitten, 38 S.W.2d 480, l. c. 482; Hart v. Riedel, 51 S.W.2d 891, l. c. 893. (3) A materialman's lien is superior to and entitled to priority over a prior building loan. Section 3159, R. S. Mo 1929. (4) The judgment in the mechanic's lien case made the lien of the Boeckeler Lumber Company superior to appellant's deed of trust and that issue is now res adjudicata. Section 3159, R. S. Mo. 1929. (5) Where there is no notice of other interests, only those whose interests are disclosed by the records are necessary parties to mechanic's lien foreclosure suit. Redlon v. Badger Lumber Company, 194 Mo.App. 650, 189 S.W. 589; Evans v. Dockins, 40 S.W.2d 508, l. c. 509.
Lee W. Grant and Barton N. Grant for respondent.
(1) "No action shall be brought to charge any person upon any special promise to answer for the debt, default or miscarriage of another person," unless the agreement upon which the action shall be brought shall be in writing. Swarens v. Pfnisel, 26 S.W.2d 951 (Appellant's Abs., p. 68); Welch-Sandler Cement Co. v. Mullins, 31 S.W.2d 86. (2) The oral promise to pay and satisfy any mechanics' liens being with the statute renders the whole contract as pleaded invalid. The court will not sever a valid part or parts from the invalid. Browne, Statute of Frauds (5 Ed.), sec. 140; Andrews v. Broughton, 78 Mo.App. 179; Beckman v. Mephan, 97 Mo.App. 161; Hamburger v. Hirsch, 212 S.W. 49, l. c. 51. (3) If the original debtor remains liable at all, or if the promisor is a guarantor or surety, the promise of the defendant must be in writing. Swarens v. Pfnisel, supra, and cases cited; Browne, Statute of Frauds (5 Ed.), 197; Wentzel v. Development Co. et al., 226 Mo.App. 960, 48 S.W.2d 185, l. c. 193; Sec. 3165, R. S. 1929; Lumber Co. v. Shafer, 251 Mo. 539; R. S. 1929, sec. 3156. (4) There is only one exception to the general rule laid down in section 3165. If there are more than one claimant, then the action becomes a general equity suit under sections 3180 and 3181, and plaintiff is not obligated to make any person party to the action unless the interest of that person appears of record. But this does not apply where there is only one lien claimant. (See section 3182). Coerver v. Lead Co., 315 Mo. 276, l. c. 285, 286 S.W. 3, l. c. 6, top. The apparent exception, where there is only one lien claimant, is if and when in the deed of trust the beneficiaries, third parties, are not named (the notes or bonds being payable to bearer), and unusual powers are given by the trust deed to the trustee, of such characted that he, the trustee, must be held to represent the beneficiaries. In such case they are in court by virtue of that representation. Sec. 3163, R. S. 1929. (5) "Where the party in whose favor the order for a new trial goes, can make it clear from the record brought up (in his adversary's appeal) that such order was right for reasons (assigned in his motion) other than those on which the trial judge based the order, he may secure an affirmance on the general principle that an appellate court should always sustain a correct result though it may have been brought about by an erroneous process of reasoning." Ittner v. Hughes, 133 Mo. 679, l. c. 688; State ex rel. v. Thomas, 245 Mo. 65, l. c. 73-74; State ex rel. v. Ellison, 266 Mo. 423, l. c. 432.
This suit was instituted on the 14th day of November, 1933, in the Circuit Court of the City of St. Louis. The allegations in the amended petition on which the cause was tried were substantially as follows:
That defendant, a Missouri corporation, having its place of business in the City of St. Louis, Missouri, was engaged in the business of owning, buying and selling real estate promissory notes secured by deeds of trust on real estate, mortgages and other securities; that sometime during the month of September, 1929, plaintiff purchased from defendant a certain negotiable promissory note for $ 4,000 and six semi-annual notes for interest thereon, all of said notes being dated August 2, 1929, and executed by Joseph E. Robertson and Cora Lee Robertson, his wife, and payable to the order of O. J. Christmann, the principal note being due and payable three years after date and the six semi-annual interest notes, each for the sum of $ 120, being due and payable respectively in six, twelve, eighteen, twenty-four, thirty and thirty-six months after date, all of said notes having been endorsed without recourse by said payee, O. J. Christmann, and all secured by a deed of trust bearing date of August 2, 1929, made by said Robertson and wife to Edward G. Gocke, trustee, covering Lot 17, in Block 8 of Vinita Park in St. Louis County, Missouri, duly recorded on September 4, 1929, in the office of Recorder of Deeds of St. Louis County; that at said time as a part of the agreement and contract of sale between the plaintiff and the defendant, the latter, through its agents, agreed to and warranted and represented to plaintiff that the money paid by plaintiff to defendant for said notes and deed of trust would be used by defendant to pay for work, labor and materials used in the erection and construction of a seven room and bath brick bungalow which was at that time being erected and constructed on said real estate and that defendant would disburse and pay said money as the work progressed only for work, labor and material actually performed and furnished on said improvements and that said $ 4,000 would be ample and sufficient to pay for all of said work, labor and materials for the completion of the building and that there would be no lien on said property prior to or superior to said deed of trust and that defendant would pay and satisfy any mechanic's or materialman's lien on said property and also would pay all workmen and materialmen in full for their work, labor and material furnished and used in the erection and construction of said building and improvements on said property and that as a part of said agreement and contract of sale defendant promised and agreed that the security afforded plaintiff by said deed of trust would not be affected or impaired by any mechanic's lien or materialman's lien on said property; that plaintiff was induced to and did purchase, receive and accept said notes and said deed of trust and paid defendant therefor the sum of $ 4,000 less $ 50 commission, because of defendant's representations, assurances, warranties and promises and solely because defendant agreed that the said statements, representations, assurances, warranties and promises were a part of said agreement and contract of sale and defendant received and accepted from plaintiff the said sum of $ 3950 for said notes and deed of trust pursuant to such agreement and contract of sale between it and the plaintiff; that defendant thereafter violated and breached said agreement and contract of sale as follows, to-wit: that during the period commencing August 27, 1929, and ending November 12, 1929, the Boeckeler Lumber Company, a corporation, furnished to J. E. Robertson, at his request, certain lumber, building material, and labor, of the value of $ 1077.99, for the residence building and garage that was being erected on said real estate by said Robertson and that such lumber, building material and labor did actually go into such improvements on said real estate and that said Lumber Company was not paid for the same and that, on February 28, 1930, it filed a mechanic's lien and itemized account in the office of the clerk of the Circuit Court of St. Louis County, Missouri, and thereafter, on May 28, 1930, instituted suit in the Circuit Court of St. Louis County against said Robertsons and all others interested in said real estate, including the unknown owner or owners of said notes so purchased by plaintiff of defendant, which proceedings, upon a hearing of the cause, resulted in a judgment on June 6, 1932, establishing a mechanic's and materialman's lien upon such said property superior to the deed of trust purchased by plaintiff from defendant as aforesaid; that thereafter an execution was issued upon said judgment and after due advertisement the said real estate was offered for sale under said judgment at the court house at Clayton on August 14, 1933, by the sheriff of St. Louis County and that plaintiff was compelled to and did purchase the property for the...
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