Ladue Contracting Co. v. Land Development Co.
| Decision Date | 05 July 1960 |
| Docket Number | No. 30453,30453 |
| Citation | 337 S.W.2d 578 |
| Parties | LADUE CONTRACTING COMPANY, a corporation, (Plaintiff) Appellant, v. LAND DEVELOPMENT COMPANY, a corporation et al., Defendants, Warren B. Nelson and Betty Lou Nelson, his wife; Clarence C. Cremer and Sandra H. Cremer, his wife; Clyde Mosley and Alice Mosley, his wife; Howard F. Willis and Dorothy J. Willis, his wife; Frank B. Summers, Jr., and Myrtis Summers, his wife; Norman B. McLeod and Gloria Zelle McLeod, his wife; Kedric M. Lynch and Mary Anne Lynch, his wife; Arthur A. Marshall and Lucille F. Marshall, his wife; Walter W. Groves and Louise Groves, his wife; Gilbert R. Palen and Lucille Palen, his wife; Gilbert Glendening and Alice E. Glendening, his wife; and Allen L. Butcher and Harryetta M. Butcher, his wife, (Defendants) Respondents. |
| Court | Missouri Court of Appeals |
Harry S. Gleick, Gleick & Strauss, St. Louis, for appellant.
Herbert W. Ziercher, Erwin Tzinberg, Ziercher, Tzinberg, Human & Michenfelder, Clayton, Jerome W. Sidel, Robert A. Hamilton, St. Louis, for respondents.
This is an action by Ladue Contracting Company, a subcontractor, to recover from Land Development Company, the general contractor, the price of labor and materials and to enforce a mechanic's lien against real estate consisting of twelve contiguous residential lots on Jewel Avenue in Glendening, a subdivision of Kirkwood. There are six residences on each side of Jewel Avenue. The avenue ends in a 'circular turn-around.' The avenue and the 'circular turn-around' are for the egress and ingress of the owners of the residences and real estate involved here. The mechanic's lien the subcontractor, Ladue Contracting Company, seeks is one against these 'buildings,' and against the 'appurtenances, improvements and land' to which it states it contributed labor and materials. The account it pleads is as follows: 'For grading and paving Jewel Avenue for Land Development Company, Inc. (general contractor) and for grading and building twelve (12) driveways and grading and building a 6"' stone circular turn-around.' Included in the petition are the individual amounts charged for the items of the account, viz., jetting sanitary sewer, $35.43; grading street, $727.50; curb and gutter, $1,283.20; paving Jewel Avenue, $2,807.04; City of Kirkwood inspection fees on street, $10.50; 12 driveways (including grading, base, and surface), $1,288.78; circular turnaround, $886.23; total $7,038.68. The account is credited with a payment of $2,989.25, leaving a balance of $4,049.43.
Ladue Contracting Company obtained judgment by default against Land Development Company for the amount prayed, with interest. The owners of the real estate filed motions to dismiss the petition on the ground that it failed to state a claim upon which relief could be granted against them. The trial court granted these motions. All motions and all rulings were general. In consequence, the record does not disclose the grounds on which the motions were presented or granted. The court overruled Ladue Contracting Company's motions to set aside these dismissals and for a new trial and entered judgment for the owners of the real estate. Ladue appeals. The petition is quite lengthy. Our view of the case requires no general summarization of the pleading's allegations, but only reference to the portions made relevant by the questions on this appeal.
As observed, Ladue seeks for its work and materials enforcement of one lien against all 'buildings, appurtenances, improvements and land' described in the petition. The property described is 'Twelve (12) contiguous lots numbered one (1) to twelve (12), inclusive, of Glendening, according to the plat thereof recorded in Plat Book 49, page 20, of the St. Louis County records, said lots now being imporved by residence buildings numbered respectively 603, 609, 615, 619, 625, 629, 628, 624, 618, 614, 608, and 602 Jewel Avenue, in the City of Kirkwood.' This is followed by the averment 'That the twelve lots hereinbefore described are contiguous; that the twelve residence buildings aforesaid are contiguous buildings erected and situated upon contiguous lots; that the buildings and lots hereinbefore described to which plaintiff delivered work and materials and into which plaintiff's work and materials entered are and were contiguous buildings erected upon contiguous lots.'
Section 429.040, V.A.M.S., authorizes the filing of one lien for lienable items on contiguous lots when the work is done or the materials are furnished under one general contract. The owners claim that this statute cannot apply 'for the reasons that Appellant failed to allege that its work was part of the contract for the erection of the buildings.' In this they are in error. Paragraphs 9 and 37 of the petition contain averments that Land Development Company was the 'original contractors for the erection of said buildings, appurtenances and improvements' and 'that said buildings, appurtenances, and improvements were erected under one general contract.' They argue that 'the petition and account show the construction of the street, curb and driveways and then, (in paragraph 7,) states that all this was done under one arrangement' and that it is not 'alleged that the one arrangement was in any way connected with the contract for the construction of the improvements' on the lots. Obviously this overlooks the allegations that Land Development Company was the general contractor for the erection of all of the buildings, appurtenances, and improvements, and that all were erected under one general contract. Naturally, those allegations embraced all work done by the general contractor and by the subcontractor for him. Ladue cannot be pushed aside and denied a lien merely because its subcontract with the general contractor was for only a part and not for all of the construction called for by that general contract. Henry v. Plitt, 84 Mo. 237, 239-241; McDermott v. Claas, 104 Mo. 14, 15 S.W. 995, 997. Certainly this must be true for Ladue alleges, paragraph 5, that its material and work, describing them as we do above, were furnished 'to be used in and * * * were, in fact, used in the construction of said buildings, appurenances and improvements.' Under any fair construction, this language must mean that the items in Ladue's account were furnished, under its subcontract, to the general contractor, and that its work and materials became a part of the entire contract and construction.
The owners argue that Section 429.040, supra, cannot apply 'for the reason that, at the time the lien herein was filed, the twelve lots involved were owned by twelve separate persons.' They overlook paragraph 8 of the petition stating that on July 29, 1952, the lien was duly filed with the proper authority and 'was intended to be a mechanic's lien against the buildings, appurtenances, improvements and land so owned' by these present owners. Moreover, paragraph 2 of the petition, introductory of all allegations, states that these present owners, at all times mentioned in the petition, 'were, and still are the owners' of the real estate we have described. Added to this, paragraph 10 of the petition states 'That at the time of the commencement of the construction of said buildings, appurtenances, and improvements, at the commencement of the furnishing of said material and labor, and at and during the accruing of said account' these present owners 'were the owners of said buildings, appurtenances, improvements and land, and that they are now the owners thereof.' Whatever the facts, the petition before us does not allege any individual interest of any owner in any individual lot. Quite the contrary, it clearly alleges that the present owners, at all relevant times, owned all of the real estate the petition describes. There is no slightest attempt to assign, by any description or averment, any single lot to any one owner or to any group of owners less than all. We must take the petition as we find it without conjecturing about facts which might exist outside of this record. And we purposely notice here that the arguments of the owners just discussed embrace all of the objections put forward here to the failure of Ladue to seek separate liens instead of the single lien it seeks under Section 429.040, supra.
The owners assert that the petition does not allege that the items embraced in the account entered into construction on the lots and that we must hold that all items of the account, except the driveways admittedly on the lots, are nonlienable. In this they are in error. In paragraph 5, the pleaded account states that all material and work were furnished and done 'for the twelve one-story residence buildings, garages, sheds, fences, sidewalks, appurtences, and improvements * * * situated upon the above described real estate.' In paragraph 3 it is stated: 'That the twelve lots hereinbefore described are contiguous; that the twelve residence buildings aforesaid are contiguous buildings erected and situated upon contiguous lots; that the buildings and lots hereinbefore described to which plaintiff delivered work and materials and into which plaintiff's work and materials entered are and were contiguous buildings erected upon contiguous lots.' While it might have been possible to employ language even more explicit, the language employed is, in our view, explicit enough to allege as a fact that all of the work done and all of the materials furnished entered into construction on the lots, and not elsewhere. And there is nothing in the petition, express or otherwise, supporting any other construction of these averments.
Construing this petition, we have borne in mind that none of the owners moved for a more definite statement as each was entitled to do. Section 509.310, V.A.M.S. All attacked it by general motions, asserting broadly and only that it did...
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