Holland v. Cunliff

• Court: Missouri Court of Appeals
• Writing for the Court: BARCLAY, J.
• Citation: Holland v. Cunliff, 69 S.W. 737, 96 Mo. App. 67 (Mo. App. 1902)
• Decision Date: 04 August 1902
• Parties: CHARLES W. HOLLAND, Respondent, v. CHARLES CUNLIFF et al., Appellant

69 S.W. 737

96 Mo.App. 67

CHARLES W. HOLLAND, Respondent, v. CHARLES CUNLIFF et al., Appellant

Court of Appeals of Missouri, St. Louis

August 4, 1902

Appeal from St. Louis City Circuit Court.--Hon. William Zachritz Judge.

AFFIRMED.

Judgment affirmed.

R. M Nichols for appellants.

(1) After the discharge of defendant Cunliff, in bankruptcy, from the legal obligation of the contract, this court can not render a judgment for the amount of the debt against them and inasmuch as the lien is an incident to the judgment against the contractors, against whom an execution must issue, and a return nulla bona be had before proceeding against the property, how is it possible for a court to sustain a mechanic's lien when there is no contract upon which a personal judgment can be rendered against the contractors? Bombeck v. Devors, 19 Mo.App. 38; Steinkamper v. McManus, 26 Mo.App. 52; Johnson, etc., Co. v. Schuyler, 49 Mo.App. 587; Ray Co. v. Cramer, 54 Mo.App. 592. (2) The judicial authority to enforce a mechanic's lien in Missouri is purely statutory, and does not belong to the powers of a court of equity. Steininger v. Reaman, 28 Mo.App. 594; McAdow v. Sturdevant, 41 Mo.App. 226. (3) In the statement of the law as contained in "Case and Comment," referred to by plaintiff's counsel, an examination of the cases will show that the court exercised equitable jurisdiction, and the statutory provisions were entirely different from the statutory provisions of Missouri. Mfg. Co. v. Burns, 59 Mo.App. 396. (4) The testimony shows that by the "order," whether containing words of the assignment of the account or not, it was intended by the parties to assign, the item of the account of $ 315, for glass and glazing, to the Drew Glass Company, as the amount of the debt which plaintiff owed to it, and as the particular item of indebtedness from the Cunliffs to Holland out of which Holland's indebtedness to the glass company accrued. The Drew Glass Company, it was shown, did the work and furnished the material for $ 315. It was considered by Holland that the Drew Glass Company had an equitable right to that item, and to make their title thereto sure he executed the written "order" or assignment. Griswold v. Railway, 18 Mo.App. 52; Kimball v. Donald, 20 Mo. 579; Smith v. Sterritt, 24 Mo. 260; Jones v. Hurst, 67 Mo. 568. (5) The item of $ 315 having been assigned to the Drew Glass Company before the filing of the lien paper, plaintiff has no title under which to maintain a lien for that item, nor can the Drew Glass Company, under an arrangement with plaintiff, maintain such lien, because the lien is a personal matter. Griswold v. Railway, 18 Mo.App. 52; Benham v. Banks, 50 Mo.App. 840. (6) The testimony is uncontradicted that the Drew Glass Company's men did the glazing, and were paid by the glass company, but it does not appear from the testimony what amount of the item of $ 315 constitutes wages. No lien is given plaintiff for the labor furnished by the Drew Glass Company, and inasmuch as the value of this labor is inseparable from the $ 315 item, for this conglomeration of lienable and non-lienable items the lien must fail for the whole of said item. Griswold v. Railway, 18 Mo.App. 52; Brown v. Railway, 56 Mo.App. 460; Gallagher v. Schmidt, 55 Mo.App. 116; O'Connor v. Railway, 111 Mo. 194; Gauss v. Houseman, 22 Mo.App. 115. (7) The item of $ 315 has no dates, nor has the itemization shown in the bill of Drew Glass Company against the plaintiff; nor does the lien paper help out this defect by the statement that the material was furnished and the labor done betwixt certain dates. The item of $ 315 is therefore void. Mitchell Plumbing Co. v. Allison, 138 Mo. 50; Curless v. Lewis, 44 Mo.App. 278.

Wm. F. Smith and N. C. Collier for respondent.

(1) The discharge in bankruptcy in no way invalidates or renders unenforcible the mechanic's lien in this case. Douglass v. St. Louis Zinc Co., 56 Mo. 388; Geibel v. Simeon, 62 Mo. 257; Phillips on Mech. Liens, secs. 299, 300. (2) Section 67 of the Bankruptcy Act avoiding "liens obtained through legal proceedings" if obtained within four months prior to the filing of a petition in bankruptcy, does not embrace mechanic's liens at all, and if it did, the lien in the case at bar was not obtained within said period. In re Kerby-Dennis Co., 95 F. 116; In re Emslie, 102 F. 291; C. C. A. reversing Cir. Ct., 98 F. 716. (3) It seems to be conceded that if we have established our lien at all it runs upon all of the houses, or at least appellant's brief makes no contention to the contrary. We cite, however, the following cases: Walden v. Robertson, 120 Mo. 38; Bickel v. Gray, 81 Mo.App. 653; Deardorf v. Roy, 50 Mo.App. 70. (4) There was no assignment by Drew Glass Company to plaintiff, but even if it might be so held, it was as collateral security, in no way defeating Holland's right to sue. Ittner v. Hughes, 133 Mo. 692; Same v. Same, 154 Mo. 55; Fisher v. Patton, 134 Mo. 32. (5) The lien shows upon its face that the "Lights" itemized in Exhibit B meant glass in place, and it is unnecessary to state separately the panes of glass, the putty, oil, tin tacks, the labor and ordinary breakage that enter into glass in place. McDermott v. Claas, 104 Mo. 14; Walden v. Robertson, 120 Mo. 45; Ittner v. Hughes, 133 Mo. 679; Same v. Same, 154 Mo. 55; Fisher v. Patton, 134 Mo. 52. (6) A lien account without dates, aided by the affidavit stating time of accrual of the demand, has been repeatedly held sufficient. Hayden v. Wulfing, 19 Mo.App. 353; Kearney v. Wurdeman, 33 Mo.App. 447; Bruns v. Braun, 35 Mo. App.; Baer v. Pfaff, 44 Mo.App. 598; Bambrick v. Webster Groves, etc., Ass'n, 53. (7) Mechanics' lien statute highly remedial and liberally construed. Dewitt v. Smith, 63 Mo. 263. (8) Form of judgment correct. Schoeffer v. Lohman, 34 Mo. 18; Seibel v. Siemon, 52 Mo. 563; Schulenberger v. Hayden, 146 Mo. 582; Landan v. Cottrill, 159 Mo. 308. (9) Evidence reasonably shows houses in course of construction when deeds of trust were filed March 25, 1897, and Buckingham then prima facie mortgagee. Schulenberger v. Hayden, supra.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

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 Brothers, were the owners with whom plaintiff dealt. The other defendants are Margaret Langan, William J. Langan, Charles C. Nicholls, trustee, Samuel C. Buckingham, Henry C. Crawford, trustee, B. J. Neiderlander, Cabanne Realty Company, a corporation, and the 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 co-partnership under the firm name of Cunliff Brothers, 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 of block twenty-five of Gamble's second subdivision of Rose Hill, in block 3825 of the city of St. Louis, described in the petition in this case and in the mechanic's lien numbered 8228, 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 sixteenth 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...