Kurtz v. Field et al.

• Decision Date: 05 February 1929
• Docket Number: No. 20566.,20566.
• Citation: 14 S.W.2d 9
• Parties: R.D. KURTZ, INCORPORATED, A CORPORATION, RESPONDENT, v. ERWIN FIELD, APPELLANT, C.J. LEHMAN ET AL., DEFENDANTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

14 S.W.2d 9

R.D. KURTZ, INCORPORATED, A CORPORATION, RESPONDENT, v. ERWIN FIELD, APPELLANT, C.J. LEHMAN ET AL., DEFENDANTS.^*

No. 20566.

St. Louis Court of Appeals. Missouri.

Opinion filed February 5, 1929.

Appeal from the Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

REVERSED AND REMANDED.

H.A. and Harry S. Gleick for appellant.

(1) Where husband and wife are seized of an estate by the entirety, the concurrence of both to improvements is essential to the establishment of a mechanic's lien. Goldberg Plumbing Supply Co. v. Taylor. 209 Mo. App. 98, 237 S.W. 900; Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; Lomax v. Cramer, 202 Mo. App. 365, 216 S.W. 575; McCray Lumber Co. v. Standard Const. Co., 285 S.W. 104, 108. (a) To prove an agency by estoppel, for the wife by the husband, facts establishing an estoppel must be pleaded and proved. Marshall v. Hall, 200 S.W. 770. (b) Passive consent by the wife does not establish the the husband's agency. Berkshire v. Holcker, 202 Mo. App. 433, 216 S.W. 556. (2) In order to justify recording of the notice of lien under section 7236, R.S. 1919, there must be strict compliance with the statutory requirements. Charles v. Morrow, 99 Mo. 638; State ex rel. v. Stewart, 313 Mo. 1, 20, 281 S.W. 768; Myers v. McRay, 114 Mo. 377; Parker v. Burton, 172 Mo. 85, 91-92, 72 S.W. 663; Hoffman v. Mechanics-American Nat. Bank, 287 S.W. 874. (a) Everything will be inferred against the return of service which a departure from the description of the statute warrants. Mueller Furnace Co. v. Dreibelbis, 229 S.W. 240. (b) The return of service in failing to show the statutory requirements, prerequisite to recording the notice, was totally deficient. Parker v. Burton, 172 Mo. 85. (3) The burden is upon the lien claimant to establish by legal proof the giving of notice to the owner as required by statute. 40 Corpus Juris 459, "Mechanic's Liens," sec. 649; Towner v. Remick, 19 Mo. App. 205; Mueller Furnace Co. v. Dreibelbis, 229 S.W. 240; Anderson v. Volmer, 83 Mo. 403; Marshall v. Hall, 200 S.W. 770. (a) A lien paper does not prove itself, even though recorded. Darlington v. Eldridge, 88 Mo. App. 525; Jose v. Hoyt, 106 Mo. App. 594, 596; Baker v. Smallwood, 161 Mo. App. 257, 143 S.W. 518; Marshall v. Hall, 200 S.W. 770; House Wrecking, etc., Co. v. Gartrell, 204 S.W. 52. (4) Defendant Field may avail himself of any defense open to his predecessors in title. Boisot on Mechanics' Liens, p. 312; 40 Corpus Juris 378, "Mechanics' Liens," sec. 517.

Lloyd W. Holmes for respondent.

(1) Actual concurrence of both husband and wife to improvements not essential to establishment of mechanic's lien against property held as an estate by the entirety. Independence Sash, Door & Lumber Co. v. Bradfield et al., 153 Mo. App. 527, 134 S.W. 118; Nold v. Ozenberger, 152 Mo. App. 439, 133 S.W. 349; Boeckeler Lumber Co. v. Wahlbrink, 191 Mo. App. 334, 177 S.W. 741; Affirmed 276 Mo. 662, 208 S.W. 840; Cole v. Barron, 8 Mo. App. 509; Fischer & Co. v. Anslyn, 30 Mo. App. 316. (2) Notice of lien is required to be given only to persons who were owners at time work was begun. McLundie & Co. v. Mount, 145 Mo. App. 660, 123 S.W. 966; Kuhleman v. Schuler, 35 Mo. 142; Hewitt v. Truitt, 23 Mo. App. 443; Koenig v. Boehme, 14 Mo. App. 593. (3) Personal service of notice of lien not required by statute. Miller v. Prough, 204 Mo. App. 413, 221 S.W. 159. (4) Statute requiring service of notice on "the owner, owners or agent" is highly remedial and should be given liberal construction. Independence Sash, Door & Lumber Company v. Bradfield, 153 Mo. App. 527, 134 S.W. 118; Kneisley Lumber Co. v. Stoddard, 113 Mo. App. 306, 88 S.W. 774.

BENNICK, C.

This is an action to enforce a mechanic's lien, instituted by plaintiff, the materialman or subcontractor, in the circuit court of St. Louis county, on January 24, 1927. When the case was called for trial, plaintiff dismissed as to the unknown holders and owners of the several promissory notes secured by deeds of trust upon the property, and described in its petition. Defendants Field, Franciscus, and Hummel alone appeared; and judgment by default was taken against the remaining defendants.

Defendant C.J. Lehmann, doing business as the Lehmann Construction Company, was the general or original contractor. Defendants Ida Lehmann and Curt J. Lehmann, husband and wife, were owners of the property by the entirety, having acquired title by a warranty deed, executed to them by their grantor on January 27, 1926. On October 9, 1926, the Lehmanns conveyed the property by warranty deed to defendants Gordon C. Hampton and Sarah J. Hampton, his wife, by whom a deed of trust thereon was executed at the same time to the Title Guaranty Trust Company, a corporation, trustee for the Lehmanns. After foreclosure proceedings under the deed of trust, the property was conveyed by a trustee's deed, executed by the Title Guaranty Company, on December 17, 1926, to defendant Pearl Goldstein, by whom the property was in turn conveyed to defendant Erwin Field, by a quitclaim deed, executed December 18, 1926.

The petition alleged that, on or about January 26, 1926, defendants Ida Lehmann, Curt J. Lehmann, Gordon C. Hampton, and Sarah J. Hampton, as owners of lot 31, in block 19, of Westmore Park Subdivision In St. Louis county, entered into a contract with C.J. Lehmann, doing business as the Lehmann Construction Company, as original contractor, for the erection of a building upon their above-described real estate; that, at the special instance and request of the original contractor, plaintiff furnished certain material and labor to be used, and which was used, in the construction of the building; that the sum of $285 was due and payable to plaintiff on such account; that plaintiff's lien was filed in the circuit court of St. Louis county on January 17, 1927; and that, at least ten days prior to the filing of such lien, plaintiff had given notice in writing to defendants Ida Lehmann, Curt J. Lehmann, Gordon C. Hampton, Sarah J. Hampton, Pearl Goldstein, and Erwin Field of its claim and intention to file a lien therefor.

Plaintiff prayed judgment against the original contractor for the sum of $285 with interest, and for a mechanic's lien against the property, the same to be a prior and superior lien to the several deeds of trust and deeds heretofore referred to.

The answer of defendant Field, with whose rights we are solely concerned on this appeal, was a general denial.

After a hearing upon the issues joined, the court rendered its judgment in favor of plaintiff, and against defendant C.J. Lehmann, doing business as the Lehmann Construction Company, for the sum of $285, with interest amounting to $22.80, aggregating the sum of $307.80, together with costs of suit and lien; and further awarded plaintiff a mechanic's lien against the property, the same to be a prior and superior lien to the several deeds of trust and deeds. From the judgment so rendered, defendant Field alone has appealed.

In addition to the facts heretofore stated, the evidence for plaintiff disclosed that its contract with the original contractor was dated September 27, 1926; that the materials were furnished, and the work done, between September 29, 1926, and October 15, 1926; and that defendant Curt J. Lehmann had stated to Mr. Kurtz of plaintiff company that he was the owner of the property. Plaintiff then offered in evidence the subcontractor's notice of claim and intention to file lien, with the return of service thereon, reading as follows:

"Lloyd W. Holmes, being duly sworn, on his oath states that on the 5th day of January, 1927, he served the within notice of claim of lien on Ida Lehmann and Curt J. Lehmann by delivering a true copy thereof to Curt J. Lehmann personally, and to Curt J. Lehmann for Ida Lehmann, he being the husband of Ida Lehmann, over the age of fifteen years, and in charge of the usual place of abode of said Ida Lehmann; and that after due and diligent search the within named Gordon C. Hampton, Sarah J. Hampton, Pearl Goldstein and Erwin Field could not be found in the county of St. Louis, Missouri; and that on the 7th day of January, 1927, he filed a true copy thereof with the recorder of deeds of the county of St. Louis, Missouri."

It was undisputed, so far as the evidence went, that plaintiff furnished the material and labor set forth in its lien account; that the prices charged therefor were reasonable; and that said materials and labor actually entered into the construction of the building.

At the close of plaintiff's case, defendant Field submitted an instruction in the nature of a demurrer; and, when the same was overruled, he declined to offer any evidence in his own behalf.

The propriety of the court's refusal of defendant Field's requested peremptory instruction in the nature of a demurrer to plaintiff's evidence is the sole point urged for our consideration on this appeal.

In support of their contention that plaintiff failed to make out a case so as to entitle it to a lien, counsel argue that there was no personal service upon the owners of the property, or their agents, of plaintiff's notice of lien, as required by sections 7235, 7236, Revised Statutes 1919. The first section provides that subcontractors, as was plaintiff, shall give ten days' notice before the filing of the lien to the owner, owners, or agent; and the latter, that, whenever property is sought to be charged with a lien, and the owner thereof is not a resident of the State, and has no agent in the county in which the property is situated, or, when the owner is a resident of the State, but has concealed himself, absconded, or absented himself from his usual place of abode, so that notice may not be served upon him, then, and in that event, a copy of such notice may be filed with the recorder of deeds, and, when so filed, shall have like effect as if...