Moller-Vandenboom Lbr. Co. v. Boudreau

Decision Date16 July 1935
Docket NumberNo. 23062.,23062.
Citation85 S.W.2d 141
PartiesMOLLER-VANDENBOOM LUMBER COMPANY, A CORPORATION, RESPONDENT, v. FREDERICK C. BOUDREAU, APPELLANT.
CourtMissouri Court of Appeals

Appeal from the Hannibal Court of Common Pleas. Hon. E.L. Alford, Judge.

AFFIRMED.

Rendlen, White & Rendlen and E.C. Hilbert for respondent.

(1) This proceeding was filed and tried, and so regarded by all parties in the trial court, as one at law. It was never deemed as an equitable proceeding until appellant filed his brief in this court. Appellant is precluded from now asserting the proceeding was in equity. The parties expressly waived a jury. (2) The appellant asked and had given many declarations of law. Such declarations have no place in proceedings in equity. Stilwell v. Bell, 248 Mo. 61, 64, 154 S.W. 85; Schibel v. Merrill, 185 Mo. 534, 550; Brann v. Mo. State Life Ins. Co., 226 S.W. 48. (3) The decree is such as is made in the ordinary mechanic's lien suit where lien is sought only against buildings. Where action is treated as one at law in lower court parties are bound by that theory on appeal. Laughlin v. Gerardi, 67 Mo. App. 372; Kings Lake Drainage Dist. v. Winkelmeyer, 62 S.W. (2d) 1101, 1103; Weston v. Fisher, 180 S.W. 1038, 1039. (4) The action and proceeding is at law, not in equity. Western Brass Mfg. Co. v. Eidlitz, 74 Mo. App. 343, 355. (5) Unless a jury is waived, whether there is a lien or not is an issue for a jury to pass upon. Williams v. Porter, 51 Mo. 440, 442; Sosman v. Conlon. 57 Mo. App. 25, 29. (6) Where there is only one mechanic's or materialman's lien claimed, equitable action provided by Secs. 3180 and 3181, R.S. Mo. 1929, does not apply. Sec. 3182, R.S. Mo. 1929; Redlon v. Badger Lumber Co., 189 S.W. 589, 592, 192 Mo. App. 658. (7) There was positive, substantial and credible evidence that there was a contract of sale by respondent to Holmes, owner of land, and a lien therefor was proper. The materials were furnished and put into the buildings in question. Sec. 3156, R.S. Mo. 1929; Stout v. Hardware Co., 131 Mo. App. 520; A.L.I. "Contracts," Vol. 1, Sec. 5, p. 7. (8) Part of the materials used in the building and embraced in the account were delivered within six months prior to filing of the lien account, and the lien was filed in time. Appellant asked the judgment and finding of the court thereon and the court so found. Sec. 3161, R.S. Mo. 1929; Badger Lumber Co. v. Lyons Ice & Power Co., 174 Mo. App. 414, 160 S.W. 49; Tull v. Fletcher, 196 Mo. App. 573, 196 S.W. 436. (9) The reasonable and fair market value of the materials was proven, and since appellant made no objection or exception to the evidence thereon at the trial, he cannot now complain. Appellant invited the decision of trier of fact thereon by his declaration. The court found the facts so to be. Ward v. Morton, 294 Mo. 408, 242 S.W. 966; Wayne Co. v. St. L. & I.M.R. Co., 66 Mo. 77. (10) The respondent delivered part of the materials used in the construction of the buildings upon which a lien was sought within six months prior to the filing of the lien account. Appellant asked the finding of the trier of fact hereon by his declarations. The court found for respondent. Appellant can't raise such issue here; he is bound by the finding. Harry Cooper Supply Co. v. Rolla Nat. Bldg. Co., 66 S.W. (2d) 591; McKee v. Verdin, 96 Mo. App. 268, 272. (11) A just and true lien account was filed and the trial court so found. Appellant by declarations asked the decision of the trier of fact hereon. The facts were found against appellant and he is bound thereby. McKee v. Verdin, supra; Security Stove & Mfg. Co. v. Stevens, 9 S.W. (2d) 808; McCarthy Lumber & Const. Co. v. Kinder, 225 S.W. 1024. (Cert. quashed, 288 Mo. 522, 232 S.W. 1035); Allen & Co. v. Mining & Smelting Co., 73 Mo. 688, 693. (12) The court did not err in overruling respondent's demurrer. Hall v. Coal & Coke Co., 260 Mo. 351, 168 S.W. 927, Ann. Cas. 1916C, 375. (13) There is evidence that materials supplied July 8, 1932, were used in the building so the demurrer was properly overruled. The appellant by declaration asked the verdict of the court sitting as a jury hereon. Appellant is bound by the decision against them. State ex rel Mo. G. & E.S. Co. v. Trimble, 307 Mo. 536, 271 S.W. 43; Ledbetter v. Phillips (Mo.), 187 S.W. 9. (14) The court did not err in overruling appellant's after-judgment motion for a continuance. Thiele v. Citizens Ry. Co., 140 Mo. 319, 338; Barnes v. Childers, 246 S.W. 342, 344; Oncken v. Ehrler, 222 S.W. 1045, 1047; Page v. Payne, 293 Mo. 600, 240 S.W. 156, 161. (15) The facts found by and judgment of the trial court are binding on appeal. McKee v. Verdin, 96 Mo. App. 268; State ex rel. v. Purcell, 131 Mo. 312; Vette v. Hackman, 292 Mo. 138, 237 S.W. 802; Securities Stove & Mfg. Co. v. Stevens, 9 S.W. (2d) 808; Tipton v. Christopher, 135 Mo. App. 619. (16) The materialman's lien statute should be liberally construed in favor of the lien. Sawyer etc. Co. v. Clark, 172 Mo. 588; Weis etc. Co. v. Rossi, 198 Mo. App. 35, 198 S.W. 424. (17) Appellant cannot complain that there was no substantial evidence to submit the issues to the court sitting as a jury, when he requested and the court gave declarations of law submitting such issues. Burton v. Newark Fire Ins. Co., 263 S.W. 539; Fleming v. Ins. Co. of No. Am., 50 S.W. (2d) 177. (18) Having submitted an issue to the court sitting as a jury by declarations of law thereon, appellant cannot now say that his demurrers should have been sustained because there was no evidence of that issue before the court sitting as a jury. Holloway v. Barnes Grocer Co., 15 S.W. (2d) 917; Mayhew v. Travelers Protective Assn., 52 S.W. (2d) 29; Steinke v. Palladium Amusement Co., 28 S.W. (2d) 440.

A.F. Haney, Moore & Fitch, Charles M. Lee and Staunton E. Boudreau for appellant.

(1) This is a suit in equity and this court will, on appeal, review the record and evidence, disregarding irrelevant, immaterial and incompetent evidence, and make its own findings. Pitts v. Pitts, 100 S.W. 1047, 201 Mo. 356, (q) 359; Henson v. Perry County Sav. & Loan Assn., 300 S.W. 1037, (q) 1038 (cited and quoted with approval in Huggins v. Hill (Mo.), 236 S.W. 1051, l.c. 1052). (2) The issues under the pleadings, being plaintiff's petition and defendant Boudreau's answer, are issues for equity determination (Abs., pp. 2-5, 6-10). Coerver v. Crescent Lead & Zinc Corp., 286 S.W. 3 (q 6), 315 Mo. 276 (q 8); Huggins v. Hill, 236 S.W. 1051 (q) 1053; Schroeter Bros. Hdw. Co. v. Croatian "Sokol" G. Assn. (Mo.), 58 S.W. (2d) 995, 1001 (q). (3) Plaintiff is concluded, as a matter of law, by the admissions against its interests made by witness White and defendant may rely upon the admissions made by him as admissions made by plaintiff Steele v. Railroad, 265 Mo. 97; Kansas City Granite Co. v. Jordan, 316 Mo. 1118. The trial court erred in overruling the demurrer of defendant Boudreau to plaintiff's evidence and erred also in overruling the demurrer of defendant Boudreau to all of the evidence (Abst., pp. 99 and 140). Authorities cited under Points 3 to 10, inclusive. (4) There is no materialman's lien except by virtue of the statute. It is plaintiff's burden to establish its right under the statute to the lien. Joplin Supply Co. v. West, 149 Mo. App. 78, 130 S.W. 156; Boland v. Webster et al., 126 Mo. App. 591; Landers Lumber & Cement Co. v. Short, 37 S.W. (2d) 981 (Mo. App.). (5) A mechanic's lien cannot be established on a parol claim, but is limited to a sworn, written filed claim and plaintiff must stand or fall on the truth or falsity of the claim filed. Landau v. Cottrill, 60 S.W. 64; McWilliams v. Allen, 45 Mo. 75; Coe v. Ritter, 86 Mo. 277; Ulrich v. Osborne, 81 S.W. 228; Great Western Mfg. Co. v. Burns, 59 Mo. App. 391; Mitchell v. Allison, 40 S.W. 8. (6) The party-claimant seeking to establish the priority of his mechanic's lien will be required to prove that he has made substantial compliance with every positive requirement of the statute to entitle him to decree or judgment subordinating to his lien the prior lien of the mortgage or deed of trust. Rauson v. Sheehan, 78 Mo. 668; 18 R.C.L., "Mechanic's Liens," 877-879; 40 C.J. 53, Sec. 14 (Mechanic's Liens); Landau v. Cottrill, 60 S.W. 64, 65, 66; Coe v. Ritter, 86 Mo. 277. (7) As particularly applicable to the instant case these provisions of Sections 3156 and 3161, Revised Statutes Missouri 1929, enumerate burdens of proof which must be sustained by plaintiff. Authorities supra, (a); Gill v. Harris, 24 S.W. (2d) 673, 224 Mo. App. 717. (8) The statute (Section 3156) requires that "the materials must have been furnished by the claimant by virtue of a contract between the claimant and the owner of the buildings." Benham v. Building Co., 60 Mo. App. 34, l.c. 35. (9) If there was any contract under which the materials in question were furnished, it was not a contract between plaintiff and defendant Holmes, but was a contract between one Canton Lumber Company and defendant Holmes. Gill v. Harris, 224 Mo. App. 717, 724, 725; Sechrist v. Hufty Rock Asphalt Co., 63 S.W. (2d) 193, 194-195. (10) The only known method by which one corporation may own another is by owning all its stock. Even the owner of all the shares of a corporation cannot establish a mechanic's lien in his own name on an account belonging to the owned corporation. Benham v. Building Co., 60 Mo. App. 34; Fletcher, Cyclopedia of Corporations, Vol. 6, pages 747-750, Section 2843; Sechrist v. Hufty Rock Asphalt Co. (Mo. App.), 63 S.W. (2d) 193, 195; Gill v. Harris, 224 Mo. App. 717, 724-25, 24 S.W. (2d) 673, 677. (11) Section 3156, R.S. Mo. 1929, further provides that the contract (if any) between plaintiff and the owner of the buildings (defen...

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