Lyvers v. Rutherford

• Citation: 80 S.W.2d 729,230 Mo.App. 921
• Parties: MARTIN H. LYVERS AND LELAND ROSS, CO-PARTNERS, DOING BUSINESS AS ROSS-LYVERS COMPANY (PLAINTIFFS), RESPONDENTS, v. STERLING F. RUTHERFORD, RAYMOND M. HENLEY, ROBERT LUNGSTRAS, LAWRENCE BAYGENTS, ET AL. (DEFENDANTS), ROBERT LUNGSTRAS, APPELLANT
• Decision Date: 22 March 1935
• Court: Missouri Court of Appeals

80 S.W.2d 729

230 Mo.App. 921

MARTIN H. LYVERS AND LELAND ROSS, CO-PARTNERS, DOING BUSINESS AS ROSS-LYVERS COMPANY (PLAINTIFFS), RESPONDENTS, v. STERLING F. RUTHERFORD, RAYMOND M. HENLEY, ROBERT LUNGSTRAS, LAWRENCE BAYGENTS, ET AL. (DEFENDANTS), ROBERT LUNGSTRAS, APPELLANT

Court of Appeals of Missouri, St. Louis

March 22, 1935

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

AFFIRMED.

Judgment affirmed.

Curlee & Teasdale and George M. Hagee for appellant Robert Lungstras.

(1) A money judgment cannot be rendered in a suit on a contract against one not a party to the contract. 13 C. J. 713, sec 821. (2) Failure to join as party to the action one of the parties to the contract, in compliance with sec. 7225, R. S Mo. 1919, is fatal error. T. A. Miller Co. v. J Oliver, 65 Mo.App. 435, l. c. 438; Russell v. Grant, 122 Mo. 161, l. c. 179; Rumsey & Sikemier Co. v. Pieffer, 108 Mo.App. 486, l. c. 488; Crane Co. v. Hawley, 35 Mo.App. 540, l. c. 541; Murdock v. Hillyer, 45 Mo.App. 287, Syll. 3, l. c. 293. (3) Where a contract is proved in a suit based on quantum meruit, failure to limit the recovery to the contract price is error, and if the contract price is not shown there is a failure of proof. 13 C. J. 75, note 82 (b); Barnett v. Sweringen, 77 Mo.App. 64, l. c. 71; Roll v. Inglish, 220 Mo.App. 1077, l. c. 1081; Kansas City Auto Co. v. Holcker-Elberg Mfg. Co., 182 S.W. 759, l. c. 761. (4) Failure to file a just and true account, as required by sec. 7221, R. S. Mo. 1919, is fatal error. 40 C. J. 247, sec. 299; Edgar v. Salisbury, 17 Mo. 271, l. c. 272; Carthage Superior Stone Co. v. Central Methodist Church, 156 Mo.App. 671, l. c. 672. (5) Failure to file the lien account within six months from the date of the last item of the account, as required by section 7221, R. S. Mo. 1919, is fatal error. Schwab v. Frieze, 107 Mo.App. 553, l. c. 556; General Fire Extinguisher Co. v. Farmers Elevator Co., 165 Mo. 171, l. c. 180; Slate Co. v. Anderson, 76 Mo.App. 281, l. c. 284. (6) A purchase-money deed of trust is superior to a lien arising out of a contract made by the purchaser. Bridewell v. Clark, 39 Mo. 170, l. c. 173; Russell v. Grant, 122 Mo. 161, Syll. 2, l. c. 177; Steininger v. Raeman, 28 Mo.App. 594, Syll. 3; Wilson v. Lubke, 176 Mo. 210.

Otto O. Fickeissen and Frank H. Fisse for respondents.

(1) Where contract is made for undisclosed principal, party furnishing materials and labor may hold either the principal or agent. Provenchere v. Reifess, 62 Mo.App. 50; Beckwith v. Rolling Mill, 190 Mo.App. 21; U. S. Wood Preserving Co. v. Granite Bituminous Co., 245 S.W. 349. Restatement of the Law of Agency, American Law Institute, sec. 336, ch. 11-C. (2) By holding the property in his name for his father, J. F. Rutherford, and permitting his father to contract for repairs and alterations in his name as the real owner of the property, Sterling F. Rutherford bound himself. Restatement of the Law of Agency, American Law Institute, sec. 336, ch. 11-C, supra. (3) All necessary parties to the action have been joined in compliance with section 7225, R. S. Mo. 1919. (4) Judgment must stand as to party not appealing therefrom. Neal v. Curtis & Co., 41 S.W.2d 543; Moore v. Hoffman, 39 S.W.2d 339; In Re N. Mo. Trust Co., 39 S.W.2d 412; Lusk v. Pub. Serv. Co., 277 Mo. 264. (5) Defect of parties must be pleaded, or such defect of parties is waived. N. S. Wood Preserving Co. v. Granite Bituminous Co., 245 S.W. 349; Johnson v. United Rys. Co., 247 Mo. 326, l. c. 357, 358; Bonsor v. Madison Co., 204 Mo., l. c. 98; Fulwider v. Gas Co., 216 Mo. 582. (6) Evidence shows conclusively that the lien account was filed within six months from the date of the last item of the account, as required by section 3161, R. S. Mo. 1929 (Sec. 7221, R. S. Mo. 1919). (7) "Lien shall have precedence over all subsequent encumbrances.--The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements." Hall v. Mill, 16 Mo. App., l. c. 458, 459. (8) Section 3178, Revised Statutes of Missouri, 1929 (R. S. 1919, sec. 7238), reads as follows: "Who construed as owner or proprietor.--Every person, including all cestui que trust, for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made, shall be included by the words 'owner or proprietor' thereof under this article, not excepting such as may be minors over the age of eighteen years, or married women." (9) "Where no declarations of law were requested by either party, and none given by the court, the reviewing court must affirm judgment if there is any way in which it can affirm it." Griffin v. Mullins, 21 S.W.2d 209, l. c. 210; Mayne v. May Stern Furn. Co., 21 S.W.2d, l. c. 211; Niedt v. American Ry. Exp. Co., 6 S.W.2d, l. c. 973; Shapiro Upholstering Co. v. Connor, 45 S.W.2d 892; Chuning v. Hinkle, 49 S.W.2d 257, l. c. 259; Judd v. Cons. School Dist. , 58 S.W.2d 783, l. c. 784; Manufacturers Finance Trust v. Collins, 58 S.W.2d 1004; Gardner v. North Kansas City Alfalfa Mills et al., 61 S.W.2d 374, l. c. 375; Spickard v. Continental Car Co., 64 S.W.2d, l. c. 735. (10) Appellant cannot file supplemental abstract after respondent has called attention of the court to the insufficiencies of abstract: Harding v. Bedoll, 202 Mo. 625; Everett v. Butler, 192 Mo. 564; Hummell v. Field, 216 Mo.App. 136, l. c. 139. (11) Rule is well settled that appellate court will not convict the trial court of error where the entire evidence is not presented in the abstract: McCarroll v. Kansas City, 64 Mo.App. 283; Crohn v. Modern Woodmen, 145 Mo.App. 158; Sessinghaus Mill. Co. v. Hannebrink, 247 Mo.App. 212; Knode v. Modern Woodmen, 171 Mo.App. 377, l. c. 380; O'Malley v. Heman Const. Co., 255 Mo. 386, l. c. 392.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This is a mechanics' lien suit instituted in the circuit court of St. Louis county on October 12, 1929. The plaintiffs are Martin H. Lyvers and Leland Ross, co-partners doing business as Ross-Lyvers Company. Defendants are Sterling F. Rutherford, Raymond M. Henley, Robert Lungstras, and Lawrence Baygents. A number of unknown owners and holders of notes secured by deeds of trust were originally made defendants, but later they were dismissed as defendants.

The following were the pertinent allegations of the petition: That Sterling F. Rutherford was the owner of a certain tract of land, therein described, situated at Lockwood Avenue and Sappington Road in St. Louis County, and that plaintiffs, at his request, furnished certain materials and performed labor described in the petition, all of the reasonable value of $ 1141.58; that such materials and labor entered into the construction of a heating plant in the frame residence located on said real estate; that the first item of material and labor in the account was furnished on the 11th day of September, 1928, and the last item was furnished on the 15th day of January, 1929, on which last named date the account accrued and became due and payable; that on the 15th day of July, 1929, within six months after the account accrued, plaintiffs filed their lien in the office of the Clerk of the Circuit Court of St. Louis County, intending it to be a mechanics' lien against the building and improvements and the land so owned by Sterling F. Rutherford and that the same be accorded priority over two deeds of trust, viz.: a first deed of trust, dated September 10, 1928, executed by Sterling F. Rutherford to defendant Raymond M. Henley, as trustee, and Robert Lungstras, as beneficiary, to secure eight promissory notes aggregating $ 9500, and a second deed of trust made by the same grantor to the said Henley as trustee for Lawrence Baygents, as beneficiary, dated October 1, 1928, and recorded October 19, 1928, to secure the payment of $ 3000, represented by twelve promissory notes.

The petition closed with a prayer for judgment against Sterling F. Rutherford for the amount of the account, to-wit: $ 1141.58, and that the same be adjudged a mechanics' lien against the property and a prior and superior lien to said deeds of trust.

Defendant Sterling F. Rutherford filed an answer, which was a general denial. Robert Lungstras filed an answer admitting that he was the owner of the notes described in the first deed of trust and further setting up that Sterling F. Rutherford acquired his interest in the real estate by general warranty deed dated and acknowledged on September 10, 1928, and recorded on October 19, 1928, wherein he, Paul Lungstras, and Elsa Lungstras Meyer were grantors and alleged that the $ 9500 represented part purchase money and averred that the deed of trust was a prior lien to the plaintiffs' mechanics' lien claim. Raymond M. Henley also filed an answer, substantially the same as Robert Lungstras. Lawrence Baygents, beneficiary in the second deed of trust, filed no answer and the answers of Robert Lungstras and Raymond M. Henley, trustee in the second deed of trust, related solely to the first deed of trust.

Plaintiffs filed a reply to the separate answers of both Robert Lungstras and Raymond M. Henley, which was substantially as follows: first, a general denial of all allegations, and that the work performed and labor furnished between the 11th day of September, 1928, and the 15th day of January, 1929, was commenced long before the recording of the first deed of trust and that said trustee and beneficiary in said deed of trust had been guilty of laches and that the plaintiffs' mechanics' lien claim attached against said property long prior to the date...