Leonard v. Bennett

• Decision Date: 29 May 1984
• Docket Number: No. 45247,45252,45247
• Parties: Lawrence J. LEONARD, d/b/a Leonard Construction Co., Respondent, v. David L. BENNETT and Susan D. Bennett, and Miles Homes Division of Insilco Corporation, Appellants.
• Court: Missouri Court of Appeals

Page 123

674 S.W.2d 123

Lawrence J. LEONARD, d/b/a Leonard Construction Co., Respondent, v. David L. BENNETT and Susan D. Bennett, and Miles Homes

Division of Insilco Corporation, Appellants.

No. 45247, 45252.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 29, 1984.

Nicholas G. Gasaway, Hillsboro, for appellants David L. Bennett, et al.

James M. Martin, St. Louis, for appellants Miles Homes Div. of Insilco & Landmark Prop.

Earl R. Blackwell, Hillsboro, for respondent.

HAROLD L. LOWENSTEIN, Special Judge.

An initial statement of this court-tried case involving a mechanic's lien may enable the reader to make some sense of the statement of facts as will next be presented. Leonard, the plaintiff-contractor, was approached by a Mr. Riley to build a foundation for a house for he and Mrs. Riley. After completion, an invoice was sent to Riley at a corporate office. The property at all times belonged to Mr. and Mrs. Bennett and is titled in the names of David Bennett and Susan Laney, Ms. Bennett's maiden name. During the contractor-Leonard's attempts to collect for the work done, the landowners still used the name of Riley and then ultimately told of their real names. The a) defendants, b) landowners, c) Rileys, d) Bennetts, e) Laney and f) Climate Corporation, as they appear therein, are all the same. The confusion is multiplied for the reason that the contractor-plaintiff, who was successful at trial, and the respondent here, didn't prepare a brief and therefore didn't come to oral argument. The reader is also forewarned that there were two other defendants in the lien suit, the original holders of first and second mortgage liens against the property. Both liens were assigned of record prior to the work in question. The assignees were not parties to the free-for-all below where a lien was impressed on the land. The mechanic's lien was given priority to the second deed of trust of defendant-appellant Miles Homes. Defendant Landmark Properties, holder of the purchase money mortgage, was found to have a preference over the mechanic's lien of the plaintiff. No appeal was taken on this point.

The trial court awarded respondent Lawrence J. Leonard d/b/a Leonard Construction (Leonard) a mechanic's judgment and lien of $6,870.00 for concrete foundation work performed for the appellants David L. and Susan D. Bennett. Appellant Miles Homes Division of Insilco Corporation (Miles Homes) also appeals from the court's ruling which gave respondent's mechanic's lien priority over its claims as cestui que trust of the second deed of trust to the property involved.

The facts of this case are rather strange in that the contracting for the work to be done (the laying of a foundation for a home), was negotiated by the Bennetts under the assumed names of Mr. and Mrs. John Riley, and other communications with Leonard Construction were also conducted under those assumed names. The record shows that Leonard was contacted by someone identifying himself as a Mr. John Riley, who requested that he submit a bid on a foundation for the property in question and that on May 8, 1980 he met Riley at the job site and examined some plans. Mrs. Riley was also there. The respondent then furnished a bid on the work based on a diagram provided by Mr. Riley. Leonard then testified that he was again contacted by Mr. Riley and was asked to meet him at the site to discuss pouring the foundation. At that meeting he informed Riley that the foundation could not be poured because the excavation was out of level and needed to be leveled up prior to pouring. Riley asked Leonard if he knew someone who could "level up" the basement. Leonard got someone to do the work for $408.00.

After the excavation work was completed, Riley again called Leonard and arranged for his foreman Don Anderson to meet Leonard at the job site with a set of plans which included a few changes from the first diagram. Leonard told Mr. Anderson that in light of the changes he thought that he should refigure the bid. He worked up a "revised bid" figuring in the changes in the foundation pouring and adding in the $408.00 for the excavation, for a total of $6,870.00. Don Anderson requested that Leonard meet him that evening to give him the revised bid. Leonard gave Anderson the bid, and Anderson told him that he would present it to Mr. Riley that evening.

Leonard's work on the project started on June 16, 1980 and was completed in about 10 days. During the time that the construction was in progress, Mr. Anderson showed up at the site and had Leonard correct an alleged oversight by allowing for a sunken living room. Leonard made the change without charge. Upon completion of the job Leonard mailed an invoice to Riley at Riley's business address, Climate Corporation, 116 Elm. After a month with no response to the invoice and no return of the invoice by mail, Leonard went to the address that was on the business card that Mr. Riley had given him. When he arrived at that address he found a small house that belonged to an elderly man who said that he had never heard of Climate Corporation or John Riley before. At that point Leonard checked with a local land developer and had them look up the owners of the property. He was informed that David Bennett and a Susan Laney (Mrs. Bennett's maiden name) owned the property. After calling several numbers given him by the land developer, Leonard was able to contact Mrs. Bennett who told him that she would have Mr. Bennett call him that evening. At this point Leonard still believed Mr. Riley and Mr. Bennett were two different people. When Mr. Bennett called that evening he told Leonard that he had paid Mr. Riley the money for the foundation, and that Mr. Riley had gone to Florida with the money to visit his sick father. Mr. Bennett told Leonard that he was satisfied with the job and that he was in the process of selling his house and it would be closed in about a month, at which time he would have enough money to pay for the foundation.

After another month without payment Leonard went to Mr. Bennett's new home address. At the home he met Don Anderson and Mrs. Riley told Leonard that her husband had gone to Florida a month before and she hadn't heard from him for a week or two, but that she would see that he was paid for the foundation. Soon after this meeting, the respondent had his attorney draw up a notice of mechanic's lien and personally served it on Mrs. Bennett at her place of work. It was at this time Mr. Leonard observed that Mrs. Bennett was the same person he had met at the original meeting in May as Mrs. Riley. Leonard then asked Mrs. Bennett (a/k/a Mrs. Susan Riley and Susan Laney), to have her husband call him. When Mr. Bennett called, the respondent confronted him with the fact that his wife was the same person that he had met earlier as Mrs. Riley and that he suspected that Mr. Bennett was actually Mr. Riley. Bennett at first denied the accusations but later admitted that he was also Mr. Riley. Leonard testified that whenever he had talked to Mr. Bennett in the past Bennett had always said that he was going to pay for the foundation work, but as soon as he found out Bennett was Riley, Bennett refused to pay.

The Bennetts', nee Rileys', testimony, found not believable by the judge, was that they never authorized the work done by Leonard. They explained their use of fictitious names and corporate affiliations as a tool to better bargain with contractors.

I. THE BENNETTS

The Bennetts raise three points of error on appeal. They first contend there was no contract between the plaintiff and either of them, but even if there were this was jointly held property and Mrs. Bennett's interest was not subject to a lien since she never agreed to the work. Their second point contends that the judgment of the trial court was rendered as a result of bias and prejudice on the part of the judge. The final point of error contends the court committed prejudicial error by admitting in evidence Leonard's exhibit No. 6, for the reason that the admission of this exhibit was not preceded by proper foundation testimony, and said exhibit comprised the entire proof of respondent's compliance with RSMo. § 429.012 RSMo. 1978. ¹ The judgment was predicated on a finding Leonard was an original contractor.

All three of the Bennetts' points on appeal are without merit and are ruled against them.

The first point the Bennetts argue in their brief is that the record fails to demonstrate any evidence of a contract. This argument is totally without merit. Although the Bennetts are correct in arguing that Leonard cannot claim a mechanic's lien in the absence of a contract, in the instant case a contract existed. Although Leonard's final proposal form contained a signature line which was not signed by either Mr. Bennett or Mr. Riley, Mr. Bennett's agent Mr. Anderson ratified that contract by appearing at the site while the work was in progress, and ordering changes in the work. The statute granting mechanic's liens allows that such liens may come into existence "... by virtue of any contract with the owner or proprietor or his agent ...." (Section 429.010 RSMo. 1978, emphasis added.) Mr. Anderson was clearly Mr. Bennett's agent acting under actual authority or in the very least apparent authority. The law in Missouri is, "[t]hough a written contract be not signed by one or both of the parties, the acceptance by one of performance by the other validates the instrument, and imposes on the acceptor the corresponding obligation provided therein." Sunbury v. Aaron, 136 Mo.App. 222, 116 S.W. 431, (1909). See also Brandt v. Beebe, 332 S.W.2d 463, 466 (Mo.App.1959); Mabry v. Swift & Co., 145 S.W.2d 163, 165 (Mo.App.1940). The conduct and actions by these appellants is such they cannot deny their inducement and acceptance of the work done by Leonard. They are estopped from denying a contractual obligation with Leonard.

The Bennetts also contend that the record...