Jodd v. Duncan

• Decision Date: 07 December 1880
• Citation: 9 Mo.App. 417
• Parties: MICHAEL JODD ET AL., Respondents, v. THOMAS B. DUNCAN ET AL., Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 417

MICHAEL JODD ET AL., Respondents,

v.THOMAS B. DUNCAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 7, 1880.

1. Where the petition to establish a mechanic's lien declares on a quantum meruit, and the proof shows a written contract, this is not fatal to the lien, where the price charged is not in excess of the contract price, and where the work and materials are shown to have been put into the building and to have been worth the price charged.

2. A building contract made with one in possession of land under a contract to purchase, may be a contract with the owner within the meaning of the mechanics' lien law; and where the contract to purchase is not carried out, a lien against the building may be established, and the mechanic may obtain a judgment under which the building may be sold, with a right of removal.

3. Where the person in possession under a contract to purchase continues the erection of the houses after failure to purchase, without opposition from the owner of the land, he may be considered as having such an interest as will enable him to waive a strict compliance with the contract on the mechanic's part.

4. That the contractor, as a security, obtains the signature of a third party to the contract with the owner is not a waiver of his lien.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

A. M. GARDNER, for the appellants: A party having a mere contract for purchase cannot charge a building erected on the premises with a lien.-- Hayes v. Fessenden, 106 Mass. 228; Metcalf v. Hunnewell, 1 Gray, 297; Squires v. Fithian, 27 Mo. 134; Hause v. Thompson, 36 Mo. 450. Even though he be in possession under such a contract.-- Thaxton v. Williams, 14 Pick. 49; Calloway v. Freeman, 29 Ga. 408. And even though the owner had notice of the intention to build, and knew of the work upon the building.-- Wells v. Bannister, 4 Mass. 514; Stone v. Crocker, 19 Pick. 292. Nor, under such circumstances, and where the furnishing of labor and materials was purely voluntary, could a lien attach to the building.-- Washburn v. Sproat, 16 Mass. 449; Oakman v. Dorchester, etc., Ins. Co., 98 Mass. 47; Sudberry v. Jones, 8 Cush. 184; Leland v. Clark, 17 Vt. 403; Bridwell v. Clark, 39 Mo. 170. A building contract must be made with the owner of the land. Peck v. Bridwell, 6 Mo. App. 451; Hance v. Thompson, 36 Mo. 450; Hance v. Carroll, 37 Mo. 378; Redman v. Williamson, 2 Iowa, 488. Taking other security, either personal or on property, discharges the lien.-- Brady v. Anderson, 24 Ill. 113; Kinzey v. Thomas, 28 Ill. 502.

O. G. HESS and B. W. PRESCOTT, for the respondents: The suit was properly brought upon a quantum meruit. Work may be commenced under a special contract and may be abandoned, yet if the service is of value and accepted, recovery for the value of the same may be had.-- Rickey v. Zeppenfeld, 64 Mo. 281; Eyermann v. Mount Sinai Cemetery, 64 Mo. 490; Yeates v. Ballentine, 56 Mo. 534; Cramer v. Bates, 49 Mo. 525; Lamb v. Brolaski, 38 Mo. 53; Dutro v. Walker, 31 Mo. 516; Law v. Sinclair, 27 Mo. 310, 508; Downey v. Burke, 23 Mo. 228; Lee v. Ashbrook, 14 Mo. 378; Thompson v. Allsman, 7 Mo. 530; Marsh v. Richardson, 29 Mo. 99; Helm v. Wilson, 4 Mo. 43. One in possession of land under a contract to purchase has such an interest as will maintain a lien against a building erected thereon under a contract with him.-- Hotel Co. v. Sauer, 65 Mo. 288; Smith v. Phelps, 63 Mo. 588; Crandall v. Cooper, 62 Mo. 480; Fleitz v. Vickery, 3 Mo. App. 593; Wag. Stats. 908, sect. 3. To constitute a waiver of lien by the taking of other security, the security taken must be inconsistent with the lien right.--Ph. on Liens, sect. 274; Greene v. Ely, 2 Greene (Iowa), 508; Crean v. McAfee, 2 Miles, 214.

BAKEWELL, J., delivered the opinion of the court.

This is an action by contractor against owner, to establish a mechanic's lien. The petition alleges that defendants Dentman and Ibers claim an interest in the premises, adverse to defendant Duncan, with whom, as owner, the contract was made.

There was a default as to Duncan. Defendants Dentman and Ibers deny generally all the allegations of the petition. They specifically deny that Duncan ever owned the premises described, and that he had any right or permission to erect any building thereon; they further say that the work was done under a written contract, the terms of which were not complied with. Plaintiffs reply that there was a waiver of the terms of the contract; that Duncan knowingly accepted the work and materials, and that the same was of value to him. They claim their reasonable value.

Judgment was rendered against Duncan, and that the claim is a lien upon the building described.

It appeared from the testimony that one Henry Doering owned a lot of ground in St. Louis, on which he had borrowed money, secured by a deed of trust. After the execution of the deed of trust, he made an agreement with defendant Duncan to sell him the lot for $2,282, of which $10 was paid in cash, and the remainder was to be paid in sixty days. This agreement was dated July 9, 1877. A warranty deed was to be delivered on payment of the purchase-money, and in default the agreement was to be void, the $10 paid was to be forfeited, and Duncan to be liable to Doering for all the damages sustained by non-fulfilment of the agreement.

Under this agreement Duncan went into possession. On August 8, 1877, Duncan contracted in writing with plaintiffs for the brick and stone work of a building which he proposed to erect on the premises. This brick and stone work was to be done according to certain plans and specifications drawn by the architect. The price agreed upon was $1,095; the work to be completed on October 1, 1877. This agreement was signed by Duncan and his mother. Before beginning the work, plaintiffs had a conversation with Doering, in which he told them that Duncan did not own the lot, but had an agreement for a conveyance on paying the purchase-money. Plaintiffs said to Doering that Duncan's mother had property in Illinois, and that they thought they would be all right. Plaintiffs then proceeded to do the brick and stone work, with the knowledge of, and without any opposition from Doering. Almost all the work was done by October 30, 1877. Some of the brickwork then remained unfinished, because defendants Dentman and Ibers, who had the contract for the carpenter-work, had the plans and specifications, and neglected to go on with their work. This occasioned an interval of four months, during which no brick-work was done. The last brick-work was done on March 23, 1878, and the lien was filed on September 14, 1878. On May 2, 1878, the deed of trust of Doering was foreclosed; and the property was purchased at that sale by one Plass, who, on August 1, 1878, conveyed the same to defendants Dentman and Ibers.

It is contended by appellants that, on this state of facts, Duncan was not the owner of the premises, and had no interest in them to which a lien could attach.

One who has entered into possession under a contract to purchase, and who has erected buildings, may be regarded as an owner within the meaning of the mechanics' lien law, and as such, might, under the law, bind his equitable interest in the land. If the contract to purchase the land was not carried out, the expectation of title would fall; and the fact, that the owner knew that the building was being erected, and did not dissent, ought not to be construed into an assent that the land should be chargeable with the lien. Ph. on Liens, sects. 69-72, and cases. The existing law under which this lien was filed provides, however (Rev. Stats. sect. 3174), that the lien shall attach to the buildings in preference to any prior lien on the land, and any person enforcing such a lien may have such buildings or improvements sold, and the purchaser may remove the same within a reasonable time. Such purchaser gets, of course, no interest in the land. This right of enforcement is not confined to leasehold property, as has been expressly held in Kansas City Hotel Company v. Sauer, 65 Mo. 288. In every instance the improvements are regarded as the primary objects which confer the lien, and the land is added thereto where it belongs to the owner or proprietor. It seems to have been the intention of the Legislature, as is said by Judge Napton in Smith v. Phelps, 63 Mo. 588, to protect the title of the mechanic to a reimbursement for his expenditure in money or labor on the house he builds, by giving him a right to the house if all other means fail. We think that the contract in the present case, having...