Julius Seidel Lumber Co. v. Hydraulic Press Brick Co.

• Decision Date: 07 December 1926
• Docket Number: No. 19573.,19573.
• Parties: JULIUS SEIDEL LUMBER CO. v. HYDRAULIC PRESS BRICK CO.
• Court: Missouri Court of Appeals

288 S.W. 979

JULIUS SEIDEL LUMBER CO. v. HYDRAULIC PRESS BRICK CO.

No. 19573.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

Rehearing Denied December 24, 1926.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by the Julius Seidel Lumber Company against Rembert Von Muenchhausen to recover for materials used in constructing a building on land belonging to the Hydraulic Press Brick Company. Judgment for plaintiff, and the Hydraulic Press Brick Company appeals. Affirmed.

Eliot, Blayney, Bedal & Eliot, of St. Louis, for appellant.

Seneca C. Taylor, of St. Louis, for respondent.

BENNICK, C.,

This action was instituted by plaintiff on March 7, 1916, against one Rembert Von Muenchhausen to recover for materials sold him and used in the construction of a building erected by him on land belonging to appellant, Hydraulic Press Brick Company, and to enforce a mechanic's lien against said building. A jury was waived by the parties, and the cause tried before the court, resulting in the rendition of a general judgment in favor of plaintiff and against Von Muenchhausen in the sum of $1,187.31, together with a mechanic's lien against the building, from which judgment the Hydraulic Press Brick Company alone has appealed.

In the petition it was averred that the defendant Von Muenchhausen was at all times the owner of certain described real estate, and also owned a leasehold interest therein by virtue of a certain lease executed by defendant Hydraulic Press Brick Company to him on May 7, 1915, running from June 1, 1915, to June 1, 1917, and that by reason of such interest the Hydraulic Press Brick Company was made a party defendant. In all other respects the allegations of the petition were in conventional form.

The answer of appellant, Hydraulic Press Brick Company, was a general denial, coupled with a plea that plaintiff had failed to prosecute its action to final judgment without unnecessary delay, as required by law.

The evidence disclosed that appellant, Hydraulic Press Brick Company, was the owner of a certain parcel of land situated in the city of St. Louis, possession of which was acquired at some date prior to December 4, 1914, by defendant Von Muenchhausen, captain of Troop B, a unit of the Missouri National Guard, by virtue of the transfer to him by his predecessor in office of a lease to the premises. Evidence as to the terms of such lease was excluded upon the objection of appellant. It was shown that Von Muenchhausen also held under promise of the execution by appellant to him of a lease, .with option of purchase, which said lease was given under date of May 7, 1915, running from June 1, 1915, to June 1, 1917. The option to purchase was not exercised, and the lease was terminated by virtue of its own provisions.

The various items of material set forth in the lien account and in the petition were furnished by plaintiff to Von Muenchhausen between December 4, 1914, and July 9, 1915. There was no dispute either as to the value of such items or that they were used in the construction of an armory for Troop B, which armory was built by Von. Muenchhausen on the land in question. The materials were not paid for, and a mechanic's lien was duly filed by plaintiff on December 11, 1915, and this action to enforce such lien was begun within 90 days thereafter. At the close of plaintiff's case appellant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which the court refused. No evidence was offered for the defendants, and error is now assigned to the court's refusal to give the peremptory instruction.

It is appellant's contention that plaintiff failed to prove a contract between it and the owner or proprietor of the land in question; that the erection of the building by Von Muenchhausen was begun on December 4, 1914; that the mechanic's lien dated from the commencement of the work on the building; that Von Muenchhausen's leasehold interest did not begin until June 1, 1915; that at the time the lien attached Von Muenchhausen was therefore a trespasser, or at most a mere licensee; and that his interest in the land was not such as to fasten a mechanic's lien, either upon the land itself or upon the improvement.

It is true, as is suggested by appellant, that the lien of a mechanic or materialman dates from the commencement of the work on the building or the furnishing of the materials therefor. Langdon v. Kleeman, 278 Mo. 236, 211 S. W. 877; Riverside Lumber Co. v. Schafer, 251 Mo. 539, 548, 158 S. W. 340; Allen v. Sales, 56 Mo. 28; Douglas v. St. Louis Zinc Co., 56 Mo. 388; Hydraulic Press Brick Co. v. Bormans, 19 Mo. App. 664; Hammond v. Darlington, 109 Mo. App. 333, 84 S. W. 446. It is also true that the erection of the building in question by Von Muenchhausen was begun on December 4, 1914, and it therefore becomes incumbent upon us to consider the question of Von Muenchhausen's status at such time, to determine whether his interest was such as to enable a lien to attach to the building. Whether or not plaintiff was entitled to a lien against whatever interest Von Muenchhausen may have had in the land is immaterial, since the lien in the case at bar was adjudged only against the improvement.

In the decision of this and the other questions in the case, we are mindful that the statutes relating to liens of mechanics and materialmen are highly remedial, and should receive a liberal construction, in order to advance the just and beneficent purpose contemplated in their enactment. Hicks v. Scofield, 121 Mo. 381, 25 S. W. 755; Dugan Cut Stone Co. v. Gray, 114 Mo. 497, 21 S. W. 854, 35 Am. St. Rep. 767; Henry Evers Manufacturing Co. v. Grant (Mo. App.) 284 S. W. 525; Weis & Jennett Marble Co. v. Gardiner, 198 Mo. App. 35, 198 S. W. 424; Philip Gruner & Bros. Lumber Co. v. Realty Co., 171 Mo. App. 614, 154 S. W. 846; Powers & Boyd Cornice & Roofing Co. v. Muir, 146 Mo. App. 36, 123 S. W....