Liggett v. Stoops

• Decision Date: 25 May 1908
• Parties: J. W. LIGGETT, Appellant, v. HARRY J. STOOPS et al., Respondents
• Court: Kansas Court of Appeals

111 S.W. 881

132 Mo.App. 218

J. W. LIGGETT, Appellant, v. HARRY J. STOOPS et al., Respondents

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

REVERSED AND REMANDED (with directions).

Botsford Deatherage & Young for appellant.

(1) We submit that according to said contract Stoops and Pratt became partners, but it is not material that this court should hold that they were such partners. If they were not partners, but were joint tenants or tenants in common, or became jointly interested in the enterprise of putting up said building and selling and disposing of the same at a profit, then they were "owners" within the meaning of the mechanic's lien law and the sale of the material by plaintiff's assignor and the use of the same in said building entitled plaintiff to a lien, even if Stoops and Pratt did not become commercial partners. However, there are many authorities to the effect that they became partners. Tobert v. Jeffrey, 161 Mo. 655; Hughes v Ewing, 162 Mo. 295; 1 Bates on Partnership, 445; Colyer on Partnership (6 Ed.), sec. 16, p. 93; Wetmore v Crouch, 150 Mo. 682; Hazel v. Clark, 89 Mo.App 83; Mackie v. Mott, 146 Mo. 254; McDonald v. Matney, 82 Mo. 365. (2) Even if Pratt was not bound personally for the payment of the account sued for herein, still plaintiff was entitled to maintain a mechanic's lien against the interest of Pratt in the house and real estate in question, because he had authorized Stoops to purchase the material to be used in this building by the terms of said contract in question. O'Leary v. Rowe, 45 Mo.App. 567; McCarty v. Portland, 71 Me. 318; Iron Co. v. Dodson, 75 Tenn. 371; Putnam v. Ross, 46 Mo. 337; DeWitt v. Smith, 63 Mo. 263; Dugan v. Gray, 114 Mo. 497; Hicks v. Schofield, 121 Mo. 381; Madden v. Realty Co., 75 Mo.App. 358; Henry v. Plitt, 84 Mo. 240; Murphy v. Murphy, 22 Mo.App. 18; Nelson v. Withrow, 14 Mo.App. 270; Jonte v. Gill, 39 S.W. 750; Ragan v. Howard, 97 Tenn. 334; Judd v. Duncan, 9 Mo.App. 417; Short v. Stevens, 92 Mo.App. 155; Lumber Co. v. Clark, 172 Mo. 588; Moore v. Jackson, 49 Cal. 109; Paulson v. Manske, 126 Ill. 72; Blake v. Pitcher, 46 Md. 453; Shapleigh v. Hill, 21 Col. 419, 41 P. 1108; Henderson v. Connelly, 123 Ill. 98; Lumber Co. v. Jones, 167 Ill. 203; Crandall v. Sorg, 198 Ill. 62; Jameson v. Gill, 98 Iowa 490; Shearer v. Williams, 56 Kan. 252; Hilton v. Merrill, 106 Mass. 528; Davis v. Humphrey, 112 Mass. 309; Carew v. Stubbs, 155 Mass. 549, 30 N.E. 219; Cue v. Whitehall, 156 Mass. 205, 30 N.E. 1134; Borden v. Mercer, 133 Mass. 7, 39 N.E. 413; Hill v. Gille, 43 Minn. 441, 42 N.W. 294; Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395; Lumber Co. v. Mosher, 88 Wis. 672, 60 N.W. 264; Lumber Co. v. Nelson, 71 Mo.App. 119; Kuenzel v. Stevens, 155 Mo. 280; Burgwald v. Weippert, 49 Mo. 60; Price v. Merritt, 55 Mo.App. 640; Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236; 20 Am. and Eng. Ency., 303, 312, 314, 315, 322, 328, 331. (3) We also cite in support of our contention the following very recent adjudications of this court which are in point fully supporting our contentions in this case. Curtin-Clark Co. v. Churchill, 104 S.W. 476; Lumber Co. v. Churchill 114 Mo.App. 528.

Charles W. German for respondent.

(1) By the contract and the testimony it is proclaimed and shown conclusively that the relationship between the parties was simply the ordinary one of owner and contractor. In support of our contention as to the relationship between the parties, we respectfully call the court's attention to the following cases: Hazell v. Clark, 89 Mo.App. 81; Mackie v. Mott, 146 Mo. 230; Hughes v. Ewing, 162 Mo. 261; Hardware Co. v. McCleverty, 89 Mo.App. 154; Campbell v. Dent, 54 Mo. 325; Newspaper Co. v. Farrell, 88 Mo. 594; Bank v. Outhwaite, 50 Mo.App. 124; Deerle v. Hunt, 50 Mo.App. 541; Ashby v. Shaw, 82 Mo. 76; Newberger v. Friede, 23 Mo.App. 631; Soallings v. Baker, 15 Mo. 481; Musser v. Brink, 68 Mo. 242; Beatty v. Clarkson, 110 Mo.App. 1; Johnston v. Johnston, 173 Mo. 113; Laperye v. Paul, 47 Mo. 587.

OPINION

BROADDUS, P. J.

This is a suit under the Mechanics' Lien Law. The plaintiff is the assignee of the Red Cypress Door & Sash Company. That company furnished material in the erection of a building on a certain lot in Pratt's Park Addition to Kansas City of the value of $ 614.59, and took the necessary steps to create a lien on the lot if it was an original contractor. If not such contractor no lien was created because of its failure to give the statutory notice of ten days to the owner of the building before the filing of the lien. The contract for furnishing the material in question was made with the defendant Stoops. The validity of the lien rests mainly upon the fact whether he was a part owner of the building by reason of a certain contract entered into between the defendants which reads as follows:

"This contract of agreement made and entered into this first day of April, 1903, by and between C. H. Pratt, party of the first part and Harry Stoops, party of the second part, witnesseth This agreement is for the purpose of building a two-story brick house with slate roof. The house to cost when completed about $ 3,500, and to contain not less than eight rooms besides bathroom, closets, etc., to be located on forty-five front feet of ground, being the south twenty-one feet of Lot 2 and the North twenty-four feet of Lot 3 in C. H Pratt's Park Avenue Addition to Kansas City, Mo., fronting on Olive street. Said Pratt, his executor or administrator hereby agrees to furnish the ground at $ 30 per front foot, free and clear of all incumbrances and is also to furnish $ 2,350 in cash as work progresses, twelve hundred dollars to be paid to said Stoops, his executor or administrator, when the house is under roof and eleven hundred and fifty dollars when house is completed. Said Stoop, his executor or administrator, is to do all the work, furnish all material and pay out the said $ 2,350 in doing so, together with other moneys of his own, if any more is required to complete the house in a first-class, workmanlike manner, with modern improvements. Work to commence within fifteen days after the signing of this contract and house to be completed on or before ninety days thereafter. Said Stoops, his executor or administrator hereby agrees to keep a separate account of costs of material and cost of labor in and upon said house and take receipted bills for each in full. No overcharge shall appear or be on any bill more than was actually paid for work done and for material when house is completed according to contract. Said Stoops, his executor or administrator, shall have the first opportunity to purchase the house and ground if he desires it for his own use by paying said Pratt, his executor or administrator, the amount of money he has advanced, with six per cent interest from April 1, 1903. Also to pay for the ground as specified, with interest from April 1, 1903, he is also to pay said Pratt, his executor or administrator, profit on the deal, but if said Stoops, his executor or administrator, should not decide when house is completed to take it for his own use, then by mutual agreement a price shall be fixed on said house that it may be sold for, by either party, and when sold said Pratt, his executor or administrator, shall have only one-third of the net profits after paying all bills as set forth in above contract. The intention of above contract is as follows: Said Pratt, his executor or administrator, is to furnish the ground and $ 2,350 in cash. The ground is put in at $ 30 per front foot or $ 1,350, making $ 3,700 on which he is to receive six per cent interest from April 1, 1903, until sold or otherwise arranged for. If when house is completed said Stoops, his executor or administrator, decide to buy the house for his own private use, he is to have the right to do so by paying said Pratt, his executor or administrator, $ 250 in addition to the $ 3,700 and interest from April 1, 1903. If said Stoops, his executor or administrator, does not elect to take the house for his own private use, then by mutual agreement a price is to be fixed on said house and grounds and either party may sell at that price and...