Miners Lumber Co. v. Miller

• Decision Date: 07 June 1938
• Docket Number: No. 24474.,24474.
• Citation: 117 S.W.2d 711
• Parties: MINERS LUMBER CO. v. MILLER et al.
• Court: Missouri Court of Appeals

117 S.W.2d 711

MINERS LUMBER CO. v. MILLER et al.

No. 24474.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Rehearing Denied June 21, 1938.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be published in State Reports."

Action by the Miners Lumber Company against H. A. Miller and others to enforce a lien for materials furnished by the plaintiff to remodel and repair a building. From the judgment rendered, the defendants appeal.

Judgment affirmed.

C. P. Damron, of Farmington, for appellants.

I. N. Threlkeld, of Flat River, for respondent.

McCULLEN, Judge.

This action was begun by Miners Lumber Company, a corporation, plaintiff, to enforce a lien for materials which it furnished to remodel and repair a building known as the Miller Hotel Building in the town of Setz, now the city of Elvins, Missouri.

A trial before the court, without a jury, resulted in a finding and judgment in favor of plaintiff and against defendants H. A. Miller and I. W. Miller, as individuals, and against them as joint executors of the estate of R. Miller, deceased, and against S. Farrel Miller, as mortgagor, and H. A. Miller and I. W. Miller as mortgagees, for certain items totaling $1101.11, for which sum judgment was entered against said defendants. It was ordered that the judgment be enforced as a special lien against the property described in plaintiff's petition. The court also adjudged that the lien of plaintiff was prior to the lien of a $10,000.00 deed of trust mentioned in the evidence. The court found against plaintiff and in favor of defendants as to certain other materials which were furnished by plaintiff in connection with the remodeling of a part of the building to be used as a beauty parlor.

The court did not make any finding or render any judgment as to R. E. Grisham, H. A. Hulsey, T. J. Buckner, or George W. Howell, who had been made co-defendants in the suit.

After an unavailing motion for new trial and in arrest of judgment, the defendants against whom judgment was rendered have brought the case to this court by appeal.

The appealing defendants, hereinafter referred to as defendants, contend that plaintiff's petition states no cause of action, asserting that it wholly fails to plead authority in any of the defendants to contract, on behalf of the owner of the leasehold on the lots and building in question, for the materials furnished by plaintiff.

Plaintiff's petition alleges that defendants H. A. Miller and I. W. Miller, and H. A. Miller and I. W. Miller as joint executors of the estate of R. Miller, deceased, together with R. E. Grisham, H. A. Hulsey, T. J. Buckner, H. A. Miller and George W. Howell, trustees for a factory known as the Lindy Hat Factory, S. Farrel Miller and Farrel Miller, mortgagors, and H. A. Miller and I. W. Miller, mortgagees, were at all times mentioned and are the owners of, or have some interest in, the following described real estate in St. Francois County, Missouri, to wit: A leasehold interest in and to lots number three and number four, block number four of the town of Setz, now the city of Elvins, on which is located a two-story brick building known as the Miller Hotel; that, being the owners of said tract of land and the owners of the building and improvements thereon, said defendants, on the ____ day of November, 1933, entered into a contract with plaintiff for the purchase of lumber and building materials to be used in said building for the purpose of installing therein a hat factory; that, in pursuance of said contract, plaintiff sold and delivered to the defendants between November 24, 1933, and May 21, 1934, both inclusive, lumber and materials at the price and of the reasonable value of $1188.96, which was used in the construction and changing of said building; and that the same was sold and delivered upon the faith and credit of a lien upon the said premises and improvements, as allowed by the statutes of Missouri.

Plaintiff further alleges in its petition that it had demanded of said defendants payment of said account which accrued and became due on May 21, 1934, which was the date of the last delivery of said lumber and materials by plaintiff, as shown by said account; that, on August 27, 1934, plaintiff filed in the office of the clerk of the Circuit Court of St. Francois County, Missouri, a just and true account of its demand after all just credits had been given, with a true description of said real estate and improvements upon which the lien is intended to apply, with the names of the owners thereof, duly verified by affidavit and stating its claim for a lien on said property and the amount of said indebtedness.

The petition further alleges that, on or about January 24, 1934, the defendants H. A. Miller, I. W. Miller, and H. A. Miller and I. W. Miller, as executors of the estate of R. Miller, deceased, transferred their interest in said leasehold to S. Farrel Miller, also known as Farrel Miller, he being one and the same person; that the defendant S. Farrel Miller on said date executed and delivered to Harry O. Smith, trustee for defendants H. A. Miller and I. W. Miller, a deed of trust on said property to secure the payments to the defendants H. A. Miller and I. W. Miller of the sum of $10,000.00; that said deed of trust was filed for record on February 28, 1934, and duly recorded; that said deed of trust was made, executed and delivered subsequent to the commencement of the improvements on said building, and that said deed of trust is an inferior and subsequent lien to the lien of plaintiff.

Plaintiff prayed judgment against all of the defendants named, and for the enforcement of such judgment as a special lien upon the real estate and improvements mentioned, and prayed that the same be declared a first and prior lien thereon as against the lien of the deed of trust mentioned.

We are of the opinion that the petition is not open to the objections made by defendants. The petition charges that the defendants named were at all times stated the owners of the leasehold interest in the property described; that, being the owners thereof and the owners of the building and improvements thereon, the defendants entered into a contract with plaintiff for the purchase of lumber and building materials to be used in said building for the purpose of installing therein a hat factory. Having charged that the defendants were the owners of the leasehold, it was not necessary to allege by what authority they contracted with plaintiff. The allegation of defendants' ownership showed their authority. It is true the evidence at the trial showed that defendants Grisham, Hulsey, Buckner and Howell were acting as citizens of Elvins who had been selected as trustees, and were not owners of the property in question; but it is clear that they were merely named as defendants for the purpose of bringing into the case all parties who might have, or claim to have, any interest in the property, so as to have all said parties before the court in accordance with Section 3165, R.S.Mo.1929, Mo.St.Ann. § 3165, p. 4996. The fact that the proof shows that said trustees were not owners of the property does not militate against the finding of the court that the petition stated a cause of action. It will be noted that the judgment was not against said trustees.

It is true that one part of the petition charges that the defendants were the owners of a leasehold in the property described, and in another part charges that they were the owners of the land, and also mentions real estate; but a reading of the entire petition shows that the interest of defendants in the property sought to be charged was a leasehold interest.

At common law a leasehold, whatever its duration in years, was held to be personal property, and it has not been converted into real estate by the statutes of Missouri whether such leasehold be for twenty or ninety-nine years, or for any other length of time. Orchard v. Store Co., 225 Mo. 414, 125 S.W. 486, 20 Ann.Cas. 1072. The petition in the case at bar, in our opinion, states a cause of action under Section 3160, R.S.Mo.1929, Mo.St.Ann. § 3160, p. 4984, for, although it contains an ambiguous averment that defendants "owned or had some interest" in the property, it nevertheless also plainly alleges that plaintiff furnished the materials mentioned under and by virtue of a contract with the owners of the leasehold property upon which the lien was sought to be attached. The petition contained all other necessary elements required to be stated in a petition for a lien in favor of one furnishing materials used in a building by virtue of a contract with the owner thereof.

It is now firmly settled law in this State that mechanic's lien statutes should be liberally construed. Rogers Foundry Co. v. Squires, et al., 221 Mo.App. 17, 297 S.W. 470; Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512; Waters et al. v. Gallemore et al., Mo.App., 41 S.W.2d 870; Harry Cooper Supply Co. v. Rolla Natl. Building Co., Mo.App., 66 S.W.2d 591; St. Louis Concrete Products Mfg. Co. v. Walker, Mo.App., 64 S.W.2d 131.

In accordance with such rule of liberal construction, we hold the petition states a cause of action.

Defendants contend that plaintiff's case must fail because plaintiff failed to make proof that defendants, or some of them, had authority to contract for the materials which were furnished, and bind the property for liens. The trial judge made a careful finding of facts which, from our examination of the record, is shown to be supported by substantial evidence in every respect. Said finding of facts by the trial judge shows that defendant T. J. Buckner was secretary-treasurer as well as a director of the plaintiff company and manager of its yard at Flat River, Missouri; that witness W. J. Hill was the manager of plaintiff's yard at Elvins, Missouri; that Buckner exercised general supervision over plaintiff's business conducted through its Elvins yard; that on...