Hoyt v. Greene

• Decision Date: 11 December 1888
• Parties: EDWARD HOYT, Plaintiff Appellant, v. FRANK S. GREENE et al., Defendant Appellants.
• Court: Missouri Court of Appeals

33 Mo.App. 205

EDWARD HOYT, Plaintiff Appellant, v. FRANK S. GREENE et al., Defendant Appellants.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge,

REVERSED (and judgment. )

Smith P. Galt, for the plaintiff appellant.

As Mesker Bros.' suit sought to recover a mechanic's lien judgment against Hoyt's property for $16,664, and Hoyt had in his hands but $1,121 due Greene on his contract and Greene did not offer to defend for Hoyt, Hoyt was compelled to defend, and as Greene's bond was an indemnity to Hoyt against attorney fees, as well as against liens, etc., the defendants are liable for the fees. Hickman v. Craig, 6 Mo.App. 582. Hoyt is not estopped in this case from raising the question whether or not Greene complied with his contract with Hoyt, as to constructing the building according to the specifications because Greene, in the mechanic's lien suit, had alleged as one of his defenses, that Mesker Bros. had not complied with their contract with him, Greene; though that controversy between them did involve the question, whether they, Mesker Bros., had put on the roof according to the specifications. In order to make a judgment conclusive on parties they must be adversary parties in the original action. Hoyt and Greene were not adversaries in the mechanic's lien suit. Freeman on Judg., sec. 158; 2 Herman on Estoppel and Res Adjudicata, 149; Miller v. Gillespie, 59 Mo. 220; McCrary v. Park, 18 Ohio St. 1; Buffington v. Cook, 35 Ala. 312.

E. B. Sherzer, for the defendant appellants.

The adjudication in the lien proceedings instituted by Mesker & Bros. upon or under said sub-contract against the owner and contractor, was a complete estoppel upon all parties to the record as to the subject-matter of inquiry therein, and was as to all the parties a complete bar to further inquiry into the matters or issues raised and inquired into under such proceedings. The conduct of plaintiff in participating in the defense, employing counsel and examining witnesses, etc., also estopped him; and plaintiff's instruction asserting otherwise was properly refused. R. S. secs. 3180, 3191; Loyd v. Barr, 11 Pa.St. 41, 51; Picot v. Signiago, 27 Mo. 125, 128; State to use v. Coste, 36 Mo. 437, 438; Hopkins v. Hudson, 107 Ind. 191, 195; Greene v. Clark, 12 N.Y. 343, 351, 354; Gleason v. Knapp, 56 Mich. 291, 293; Coates v. Roberts, 4 Rawle 112; Strong v. Ins. Co., 62 Mo. 289, 299; Wood v. Ensel, 63 Mo. 193, 194; Stoops v. Wittler, 1 Mo.App. 420, 423, 424. Defendant Greene, having procured counsel in the defense of the lien suit, and having defended the same on the merits, discharged his duty under the law and within the meaning and import of the bond; that plaintiff's voluntary act, in hiring and paying counsel to defend, without consultation with, knowledge, sanction or request of defendant, and not necessitated by any refusal or default on defendant's part in the conduct of said suit, did not impose upon defendant the duty or obligation to indemnify plaintiff in such payment, and the court erred in refusing the defendant's instruction directed to that point. R. S. sec. 3191, p. 536; Hickman v. Craig, 6 Mo.App. 582, 583; 2 Mo.App. 254, 259, 260. The court erred in not rendering judgment in favor of defendant Greene for the full amount in plaintiff's hands after deducting the lienor's judgment ($1,080.52), and indemnity in lien suit, adjudged in respect to the work, etc., done under Greene's sub-contract with Mesker & Bros. Wagoner v. Dette, 2 Mo.App. 254, 261.

OPINION

ROMBAUER P. J.

The defendant Greene contracted with the plaintiff to erect for him a two-story factory building according to certain specifications, and gave bond for the faithful performance of the contract with his co-defendants as sureties. The bond was conditioned among other things that Greene would perform the contract and hold the plaintiff harmless and indemnified from and against all and every claim, demand, judgments, liens and mechanic's liens, costs and fees of every description, incurred in suit or otherwise, that may be had against him or against the buildings to be erected. The contract provided that the last installment of $2,450 should be paid Greene when the building was completed and accepted.

This action is brought on the bond given by Greene. The plaintiff claims that he was compelled to pay $1,080.52 on a mechanic's lien judgment and one hundred dollars for attorney's fees in defending against the lien. Also that he was compelled to pay $228.02 for completing the roof, and one hundred and thirty-five dollars for painting the outside of the roof, items of expense caused by non-completion of the contract in conformity with the specifications. That the whole amount thus paid by him was $422.54 in excess of money due Greene under the contract, and that by the failure on part of Greene to complete said contract he incurred said additional expenses, wherefore he sues on the bond.

The answer denies that there was any failure on part of Greene to perform the contract so far as protecting the plaintiff's property against liens is concerned; admits the bringing of the lien suit, but claims that the same was defended by Greene at plaintiff's request, and avers that in said suit the question as to whether Greene did complete the contract in conformity with the specifications was fully adjudicated, whereby that question became res judicata. The answer further denies that the one hundred dollars counsel fees paid by plaintiff were necessarily paid by plaintiff in defending against any lien claim, and states there is still a balance of sixty dollars due the defendant Greene by the terms of the contract for which he asks judgment. The new matter in the answer was denied by reply.

The cause was tried by the court without the intervention of a jury, and the parties adduced evidence tending to show the following facts: The plaintiff let the contract to Greene for the entire building under certain specifications, and Greene sub-let the contract for the corrugated iron roofing which was to be of a certain make under the identical specifications to Mesker. When the building was completed, the plaintiff claimed that the iron roofing was not done according to specifications. He wrote to the defendant Greene suggesting to him not to settle with Mesker until the roof was inspected by an expert, and he, plaintiff, was satisfied that it had been put up in accordance with the specifications. The defendant Greene and Mesker thereupon called on plaintiff who refused to pay the balance of about $1,121, still in his hands, and Mesker brought suit for $1,664, which he claimed was due him under his contract with Greene, against Greene as contractor and Hoyt as owner. This claim, however, he reduced to $1,097 before the trial, and recovered judgment thereon for $1,082.50, which judgment the plaintiff subsequently paid.

Upon the trial of the present action the plaintiff gave evidence tending to show that the roof was not constructed in conformity with the specifications and that he paid the amounts as claimed in his petition to have it thus completed; also that he paid to his counsel in the Mesker lien suit one hundred dollars, which was a reasonable fee. The defendant gave evidence tending to show that the roof was completed according to specifications, that he, Greene, defended the lien suit of Mesker at plaintiff's request, and employed and paid his own counsel; that the plaintiff himself caused the witnesses to be subpoenaed in the Mesker suit, who were to prove that the roof had not been properly constructed. That issue was fully and fairly gone into in that suit, and the finding of the court therein was that the roof had been completed in conformity with the specifications.

This being the evidence the plaintiff requested the court to declare...