Magidson v. Stern

• Decision Date: 04 March 1941
• Citation: 148 S.W.2d 144,235 Mo.App. 1039
• Parties: PHIL MAGIDSON, DOING BUSINESS AS MAGIDSON CONSTRUCTION COMPANY, (PLAINTIFF), RESPONDENT, v. MORRIS STERN, IDA STERN, MRS. LUELLA B. SAYMAN, JUSTIN S. BREWER AND W. L. HEMINGWAY, LAST BOARD OF DIRECTORS AND TRUSTEES OF THOMAS M. SAYMAN INVESTMENT COMPANY, A CORPORATION, AND LOUIS BELL, (DEFENDANTS), APPELLANTS; ARTHUR J. MICHEL, DOING BUSINESS AS SOUTH SIDE TERRAZZO MARBLE & TILE COMPANY, AND COOK PAINT & VARNISH COMPANY, A CORPORATION, ASSIGNEE OF J. W. MILLER, (DEFENDANTS), RESPONDENTS; ST. LOUIS UNION TRUST COMPANY, A CORPORATION, DEFENDANT
• Court: Missouri Court of Appeals

148 S.W.2d 144

235 Mo.App. 1039

PHIL MAGIDSON, DOING BUSINESS AS MAGIDSON CONSTRUCTION COMPANY, (PLAINTIFF), RESPONDENT, v. MORRIS STERN, IDA STERN, MRS. LUELLA B. SAYMAN, JUSTIN S. BREWER AND W. L. HEMINGWAY, LAST BOARD OF DIRECTORS AND TRUSTEES OF THOMAS M. SAYMAN INVESTMENT COMPANY, A CORPORATION, AND LOUIS BELL, (DEFENDANTS), APPELLANTS;

ARTHUR J. MICHEL, DOING BUSINESS AS SOUTH SIDE TERRAZZO MARBLE & TILE COMPANY, AND COOK PAINT & VARNISH COMPANY, A CORPORATION, ASSIGNEE OF J. W. MILLER, (DEFENDANTS), RESPONDENTS; ST. LOUIS UNION TRUST COMPANY, A CORPORATION, DEFENDANT

Court of Appeals of Missouri, St. Louis

March 4, 1941

Opinion Modified and Motion for Rehearing Overruled March 18 1941.

Appeal from Circuit Court of City of St. Louis.--Hon. Wm. S. Connor Judge.

AFFIRMED IN PART AND REVERSED IN PART.

AFFIRMED IN PART AND REVERSED IN PART.

Walter Lambert for Arthur J. Michel, doing business as South Side Terrazzo Marble & Tile Company.

(1) R. S. Mo. 1929, sec. 3178; Sawyer Co. v. Clark, 172 Mo. 588; O'Leary v. Roe, 45 Mo.App. 567; Seaman v. Paddock, 51 Mo.App. 465; Cement Co. v. Elser, 156 Mo.App. 294; Ward v. Nolde, 259 Mo. 297; Ambrose Mfg. Co. v. Gapen, 22 Mo.App. 397; Klein v. Perry, 51 Mo.App. 422; Seaman v. Paddock, 51 Mo.App. 465; Price v. Merritt, 55 Mo.App. 640. (2) Where wife gives deed of trust on property so that husband may make improvements, she is estopped from denying contract was made for her benefit. Bovard v. Owen, 30 S.W.2d 154; Boeckeler Lbr. Co. v. Wahlbrink, 191 Mo.App. 334. (3) A preponderance of evidence is sufficient to establish husband's agency. Lbr. Co. v. Stevens, 84 Mo.App. 558; Kuenzel v. Stevens, 155 Mo. 280; McDonnell v. Nicholson, 67 Mo.App. 408; Mfg. Co. v. Grant, 284 S.W. 525. There must be an agency established and if that relation is not made out to the satisfaction of the trier of the facts, the lien must fail. Kuenzel v. Stevens, 155 Mo. 280; Winslow Bros. v. McCully, 169 Mo. 236; Cement Co. v. Elser, 156 Mo.App. 291. (4) Langdon v. Kleeman, 278 Mo. 236. (5) De Witt v. Smith, 63 Mo. 263, 266; Duggan Cut Stone v. Gray, 114 Mo. 497, 500; Henry Evers Mfg. Co. v. Grant, 284 S.W. 525, 527; Leach v. Bopp, 12 S.W.2d 512, 514; Julius Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 979, 980-981; Hanenkamp v. Hagedorn, 110 S.W.2d 826; St. Louis Concrete Products Mfg. Co. v. Walker, 64 S.W.2d 131, 133; Arthur Maier Plbg. Co. v. Dieckmann, 74 S.W.2d 495, 498. (6) Bowen v. Buckner, 171 Mo.App. 384, 388; Lottman v. Barnett, 62 Mo. 159, 170; Hargis v. Denny, 117 S.W.2d 368, 372; Montague v. Missouri & Kansas Interurban Ry. Co., 289 Mo. 288, 305, 233 S.W. 189, 194-195; New First Nat. Bank v. Rhodes Prod. Co., 37 S.W.2d 986; Fischman Harris Rlty. Co. v. Kleine, 82 S.W.2d 605; Ayres v. Middleton, 210 S.W. 911; Cornet v. Cornet, 248 Mo. 184; Blair v. Ry. Co., 89 Mo. 383; Garver v. Garver, 145 Mo.App. 353; Oliver v. Wilkey, 62 S.W.2d 776. (7) Sec. 4561, R. S. Mo. 1929.

Jesse E. Bishop for appellants Thomas M. Sayman Investment Company, a Corporation, Louis Bell and Ida Stern.

Otto O. Fickeissen of counsel for said appellants.

(1) Badger Lumber & Coal Co. v. Pugsley et al., 227 Mo.App. 1203, 61 S.W.2d 425; Cochran et al. v. Johnston et al. (Mo. App.), 25 S.W.2d 130; R. D. Kurtz, Inc., v. Field et al., 223 Mo. App 270, 14 S.W.2d 9; I. R. Goldberg v. Taylor et ux., 209 Mo.App. 98, 237 S.W. 900. (2) Badger Lumber & Coal Co. v. Pugsley et al., 227 Mo.App. 1203, 61 S.W.2d 425; Bovard v. Owen et al. (Mo. App.), 30 S.W.2d 154; R. D. Kurtz, Inc., v. Field et al., 223 Mo.App. 270, 14 S.W.2d 9; Berkshire v. Holcker, 202 Mo.App. 433, 216 S.W. 556; Thimmig v. Central Talking Pictures Corp. (Mo. App.), 85 S.W.2d 208; Marshall v. Hall, 200 S.W. 770. (3) 17 Corpus Juris. Sec., p. 1143, par. 520; Badger Lumber & Coal Co. v. Pugsley et al., 227 Mo.App. 1203, 61 S.W.2d 425; Henry Evers Mfg. Co. v. Grant et al. (Mo. App.), 284 S.W. 525; Ward v. Nolde, 259 Mo. 285, 168 S.W. 596. (4) R. S. Mo. 1929, sec. 3163; Bovard v. Owen et al. (Mo. App.), 30 S.W. 472; United Iron Works v. Sleepy Hollow Mining Co., 198 S.W. 443; May v. Mode, 142 Mo.App. 656, 123 S.W. 523; Bovard v. Owen et al. (Mo. App.), 30 S.W.2d 154; Langdon v. Kleeman, 278 Mo. 236, 211 S.W. 877; 21 Corpus Juris, p. 1207, sec. 208; Bovard v. Owen et al. (Mo. App.), 30 S.W.2d 154; Lears v. Cella (Mo. App.), 186 S.W. 1150; Carmen v. Harrah, 182 Mo.App. 365, 170 S.W. 388.

Newell S. Ferry for respondent Phil Magidson, doing business as Magidson Construction Company.

(1) Secs. 3159 and 3178, R. S. Mo. 1929; Holland v. Cunliff, 96 Mo.App. 67, 82; Dugan v. Scott, 37 Mo.App. 663; Elliott & Barry Engineering Co. v. Scott, 134 Mo.App. 95; Wilson v. Lubke, 176 Mo. 210; Lowry-Miller Lumber Co. v. Dean, 29 S.W.2d 736; Jones Lumber Co. v. Snyder, 300 S.W. 850. (2) Price v. Merritt, 55 Mo.App. 640; Ward v. Nolde, 259 Mo. 285; Masterson v. Roberts, 78 S.W.2d 856; Concrete Engineering Co. v. Grande Building Co. 86 S.W.2d 595; American Sash & Door Co. v. Stein, 96 S.W.2d 927; O'Leary v. Roe, 45 Mo.App. 567; Westport Lbr. Co. v. Harris, 131 Mo.App. 94; Secs. 3156, 3163 and 3178, R. S. Mo. 1929; Major v. McVey, 94 S.W.2d 1122, 128 S.W.2d 347; Jefferson Co. Lbr. Co. v. Robinson, 121 S.W.2d 209; Lee & Boutell Co. v. C. A. Brockett Cement Co., 106 S.W.2d 451; Lyvers v. Rutherford, 80 S.W.2d 729; Hanenkamp v. Hagedorn, 110 S.W.2d 826; Sol Abrams' Sons Const. Co. v. Osterholm, 136 S.W.2d 86; Fleming-Gilchrist Const. Co. v. McGonigle, 89 S.W.2d 15; First Nat'l Bank v. Witherspoon Livestock Com. Co., 90 S.W.2d 453, 461. (3) Kuenzel v. Stevens, 155 Mo. 280; A. M. Becker Lbr. Co. v. Stevens, 84 Mo.App. 558; Boeckeler Lbr. Co. v. Wahlbrink, 176 S.W. 741; J. H. Magill Lbr. Co. v. Carter, 17 S.W.2d 581; Houts' Missouri Pleading & Practice, sec. 507, page 355; City of Moberly v. Lotter, 266 Mo. 457; Fiorina v. Wabash Ry. Co., 260 S.W. 123.

BENNICK, C. Hughes, P. J., and McCullen and Anderson, JJ., concur.

OPINION

BENNICK, C.

--This is an equitable mechanic's lien suit which was brought for the purpose of determining and enforcing various rights, interests, and liens as between certain mechanic's lien claimants, the claimants of other liens and rights, and the owners of the property involved in the suit, and for the further purpose of marshaling, applying, and distributing the proceeds of any sale of the property among the parties to the suit according to their respective legal and equitable rights thereto.

The suit was brought by Phil Magidson, doing business as Magidson Construction Company, the principal contractor, while joined as defendants were Morris Stern and Ida Stern, his wife, the owners of the property by an estate by the entirety; Arthur J. Michel, doing business as South Side Terrazzo, Marble & Tile Company, a lien claiment by virtue of having furnished labor and material at the special instance and request of Magidson; Cook Paint & Varnish Company, assignee of one J. W. Miller, who had likewise furnished labor and material at the special instance and request of Magidson; Thomas M. Sayman Investment Company, the owner and holder of two deeds of trust upon the property; and one Louis Bell, who was the purchaser of the property at a foreclosure sale under one of the deeds of trust owned and held by Thomas M. Sayman Investment Company, and who purchased the same as the admitted straw party and agent of such company.

Other parties originally named as defendants, and not identified or referred to herein, were dismissed during the progress of the case below.

The property in question consists of certain contiguous lots improved by three two-story brick tenement buildings, which contain flats or living quarters for forty-eight families, and which are known and numbered as 3924-3960 Kennerly Avenue, in the City of St. Louis, Missouri.

On November 4, 1930, Lorraine Realty and Investment Company, the then owner of the property, executed a deed of trust on the same to St. Louis Union Trust Company, as trustee for Thomas M. Sayman Investment Company, to secure the payment of a series of notes aggregating $ 40,500 in principal amount. Such deed of trust was duly recorded on November 18, 1930, and was thereafter continuously held and owned by Thomas M. Sayman Investment Company until the subsequent foreclosure of the property under power of sale contained in such deed of trust.

On December 30, 1930, the Lorraine Realty and Investment Company conveyed the property by three separate warranty deeds to Morris Stern and Ida Stern, his wife, so as to constitute them the owners of the property by an estate by the entirety, subject, however, to the above deed of trust held and owned by Thomas M. Sayman Investment Company. Such deeds to the Sterns were thereafter recorded on January 8, 1932, more than a year after the time of their execution.

On January 19, 1932, Morris Stern alone entered into a written contract with plaintiff, Magidson, as general contractor, for the furnishing of the labor and material for the erection and completion of twelve brick additions and wooden porches upon the three tenement buildings situated upon the real estate in question.

Such improvements consisted of the erection of four rectangular brick two-story wings on the rear of each building, or twelve wings in all, with wooden porches connecting the wings both upstairs and down. Each of the wings contained two bathrooms and toilets on each floor; and all of the wings were attached and built onto the rear walls of the then existing buildings, so that each wing consisted of three new outer walls, a foundation, and a roof, with the inner wall comprising the portion of the existing rear wall of the building to which the wing was attached. In this manner, the wings, when completed, became integral parts...