Holland v. Cunliff

• Decision Date: 06 August 1902
• Citation: 96 Mo. App. 67,69 S.W. 737
• Court: Missouri Court of Appeals
• Parties: HOLLAND v. CUNLIFF et al.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 737

96 Mo. A. 67

HOLLAND v. CUNLIFF et al.¹

Court of Appeals at St. Louis, Missouri.

August 6, 1902.

MECHANICS' LIENS — DEBTOR'S DISCHARGE IN BANKRUPTCY — EFFECT — GARNISHMENT — PERSONAL JUDGMENT AGAINST CONTRACTOR — FILING LIEN — ITEMS OF ACCOUNT — JUDGMENT — PARTIES BOUND — APPEAL — PRESUMPTIONS.

1. In a suit to enforce a mechanic's lien, it appeared that the principal debtors had been discharged of the debt by proceedings in bankruptcy under the federal act of 1898, after steps to affix the lien had been taken by plaintiff. Held, that the discharge did not defeat the lien.

2. Under Missouri statutes, the lien of a mechanic or materialman dates from the time of the commencement of the improvement. Such a lien is "not obtained through legal proceedings," within the meaning of the federal bankrupt act of 1898, and is not discharged thereby.

3. The intent of the bankrupt act of 1898 appears to be to make the discharge personal to the debtor, and not to release other parties liable with him, or liens not declared to be released.

4. Where a judgment lien has been obtained against the property of a garnishee, the discharge in bankruptcy of the principal debtor will not release the lien.

5. A personal judgment against the contractor is not essential to a mechanic's lien under the Missouri statute. Even the omission to make the contractor a party to the lien suit is a mere irregularity.

6. A mechanic's lien cannot be maintained where the steps necessary to hold the principal contractor have been omitted; but only one of two contractors need be made party defendant to the suit.

7. Where various papers forming part of a mechanic's lien account filed by the plaintiff refer to each other in such a way as to give the information required by the lien law touching the materials and labor furnished, the account will be held sufficient.

8. A charge in a lien account is not a "lumping" one where it includes only lienable items, which were the subject of one contract for a given price, which is also shown to be the reasonable value of the article furnished.

9. Where separate buildings have been erected upon contiguous lots under one general contract, a mechanic's lien may be obtained, on proper proceedings, against all of the property, under the Missouri statute.

10. A mechanic's lien for labor or materials in erecting a building is a paramount lien on the building as against a prior deed of trust on the land on which the building is situated.

11. Only parties defendant and those in privity with them are bound by the judgment in a mechanic's lien suit.

12. Where certain documentary evidence was introduced in the trial court, and only the general effect thereof is stated in the appellate record, it will be presumed that the documents support the conclusion reached in the trial court, if such presumption is at all consistent with the statement of the effect of the instruments.

13. Where plaintiff gave an order upon his attorney in favor of a subcontractor for the amount of a claim included in plaintiff's account for a lien, and the order provided that the attorney should pay the subcontractor out of the proceeds of collection, the giving of the order constitutes no bar to a recovery by plaintiff of the item in question, in the circumstances stated in the opinion.

14. Error is not to be presumed, but must be affirmatively shown.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by Charles W. Holland against Charles Cunliff and others. From a judgment for plaintiff, defendants appeal. Affirmed.

R. M. Nichols, for appellants. Wm. F. Smith and N. C. Collier, for respondent.

BARCLAY, J.

Plaintiff brought this action to enforce a mechanic's lien for labor and material furnished to certain buildings in the city of St. Louis. Charles Cunliff and Benjamin Cunliff, as partners under the firm name of Cunliff Bros., were the owners with whom plaintiff dealt. The other defendants are Margaret Langan, Wm. J Langan, Charles C. Nicholls, trustee, Samuel C Buckingham, Henry C. Crawford, trustee, B. J. Niederlander, Cabanne Realty Company, a corporation, Nicholls-Ritter Realty & Financial Company, a corporation, possessing various interests in the real property sought to be charged with the lien. The petition is in the ordinary form, and need not be quoted. Some of the defendants made default, and did not answer; others filed general denials. The most important defense depends on the force of a discharge in bankruptcy pleaded by the Messrs. Cunliff, the principal debtors and original owners, each of whom introduced his discharge in evidence. The liability to the plaintiff on the demand here in suit was duly scheduled by them in proper form as an open account in the bankruptcy proceeding, and it is claimed to have been annulled thereby. No question as to the form of either discharge in bankruptcy is raised. The plaintiff took issue with the answer of the Cunliffs, pleading their discharge in bankruptcy. The following are some dates in the history of the case: December 18, 1896, the Cunliffs acquired the land. March 18, 1897, deeds of trust to Mr Nicholls, as trustee for a building loan. April 26, 1897, first item of plaintiff's account in suit. September 3, 1897, part of lot sold to Mrs. Langan, subject to the incumbrance. October 15, 1897, last item of plaintiff's account. October 20, 1897, second deed of trust to Mr. Campbell, as trustee. March 19, 1898, plaintiff's lien account filed, and suit begun. March 10, 1900, bankruptcy petition of the Cunliffs filed. June 30, 1900, discharge of the Cunliffs in bankruptcy. Plaintiff's demand consists of an account for painting and glazing, the particulars of which will be mentioned in the progress of the opinion. The facts are practically undisputed. The only questions concern the law to be applied. The trial court found in favor of the plaintiff in the sum of $1,005.90, after making a number of specific findings at the request of plaintiff.

Owing to some of the peculiarities of the case, it may be well to set forth the judgment of the trial court, omitting merely formal parts and the description of the property: "The court having found from the evidence, as set forth in its finding of facts, that the defendants Charles Cunliff and Benjamin Cunliff, as copartnership under the firm name of Cunliff Bros., as owners of the premises and improvements hereinafter mentioned, were, at and prior to the commencement of this suit, justly indebted to plaintiff for work and labor done and materials furnished for and used in the construction of the six detached two-story brick and stone buildings, situated upon lot eighteen (18) of block twenty-five of Gamble's second subdivision of Rose Hill, in block 3,825 of the city of St. Louis, described in the petition in this case and in the mechanic's lien numbered 8,228, read in evidence, said lot having," etc., "* * * in the sum of eight hundred and forty-two dollars, together with interest thereon at the rate of six per cent. per annum from the 16th day of October, 1897, and that said indebtedness has never been paid, and that plaintiff has, in due time, manner, and form, taken all the steps required by law to perfect and establish, and has perfected and established, and is entitled to, a mechanic's lien for said indebtedness upon said buildings, and also upon said lot 18, whereon the same are situated; it further appearing that the defendants Charles Cunliff and Benjamin Cunliff have, since the commencement of this suit, been duly discharged in bankruptcy, and that the said indebtedness secured by said mechanic's lien is not a now existing personal liability against either the said Charles Cunliff or Benjamin Cunliff, no personal judgment may or can be rendered against the defendants in this cause. It is therefore considered, ordered, and adjudged that plaintiff has and had established an indebtedness by and under his contract with the said Charles Cunliff and Benjamin Cunliff, owners of said described premises and improvements, which principal and interest now amounts to the sum of one thousand and five and 90-100 dollars ($1,005.90), and that said indebtedness is entitled, together with costs accrued and to accrue in this proceeding, to be satisfied out of said described buildings and real estate of and for a mechanic's lien thereon in favor of said plaintiff, Charles W. Holland, and it is further ordered that special execution issue therefor to the sheriff of the city of St. Louis," etc. Defendants in due time filed motions for a new trial and in arrest, which were overruled, and the present appeal was inaugurated, after the usual formal exceptions had been preserved.

We shall state the material facts in conjunction with our rulings thereon.

1. The leading issue in this appeal is whether or not a mechanic's lien, duly imposed on real property by a proper observance of statutory procedure, is destroyed because of the fact that the principal debtors, the contracting owners, have been discharged in bankruptcy. It is claimed by appellants that the relation existing between the Messrs. Cunliff and the property sought to be charged with liability for their contract with plaintiff is such as to discharge the property when the debt due by the original owner is discharged by bankruptcy proceedings. The defendants invoke the doctrine of many cited cases to the effect that, in the absence of proper steps to hold the principal contractor, the lien against the property expires. How far that doctrine applies to a release in bankruptcy obtained by an owner, who is primarily liable on a contract for improvements, has not been the subject of any direct decision in Missouri in recent years. It was held, however, in a case construing the bankrupt law of 1867, that a discharge in bankruptcy of the owner of real property would not release the property from such a lien. Douglas v. Zinc Co., 56 Mo. 388, followed...