Morgan Trucking Co. v. Shartzer et al.

• Decision Date: 05 October 1943
• Docket Number: No. 26375.,26375.
• Citation: 174 S.W.2d 226
• Court: Missouri Court of Appeals
• Parties: ARTHUR MORGAN TRUCKING COMPANY, RESPONDENT, v. G.H. SHARTZER, DOING BUSINESS AS SHARTZER WRECKING CONTRACTORS AND AS SHARTZER WRECKING & EXCAVATING CONTRACTORS; FRUIN COLNON CONTRACTING COMPANY ET AL., DEFENDANTS, PETER A. O'NEIL ESTATE, KARON REALTY COMPANY AND LERNER SHOPS OF MISSOURI, INC., APPELLANTS.

174 S.W.2d 226

ARTHUR MORGAN TRUCKING COMPANY, RESPONDENT, v. G.H. SHARTZER, DOING BUSINESS AS SHARTZER WRECKING CONTRACTORS AND AS SHARTZER WRECKING & EXCAVATING CONTRACTORS; FRUIN COLNON CONTRACTING COMPANY ET AL., DEFENDANTS, PETER A. O'NEIL ESTATE, KARON REALTY COMPANY AND LERNER SHOPS OF MISSOURI, INC., APPELLANTS.

No. 26375.

St. Louis Court of Appeals, Missouri.

Opinion filed October 5, 1943.

Appellants' motion for a rehearing denied October 22, 1943.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Wm. B. Flynn, Judge.

AFFIRMED.

John S. Leahy and Wm. O'Herin for appellants.

Plaintiff was not entitled to have its judgment against defendant Shartzer established as a mechanic's lien against the real estate and improvements for the reasons: (a) Plaintiff's claim against Shartzer was not predicated on lienable charges. (b) Plaintiff did not perform any work or labor upon or furnish any material for the erection of the new building. (c) Plaintiff furnished trucks and drivers to haul away debris from a wrecked building for which the statutes do not provide a lien. R.S. 1939, sec. 3456 (Mo. R.S.A., sec. 3546); Holzhour v. Meer, 59 Mo. 434, 436; Bruns v. Braun, 35 Mo. App. 337; Sound Transfer Co. v. Phinney Realty & Inv. Co., 71 Wash. 473, 128 Pac. 1047; Bon Marche Realty Co. v. So. Surety Co. (Wash.), 278 Pac. 679.

Kramer & Chused for respondent.

(1) Where the property owner contracted for the demolition of an old building and for the erection of a new building upon the same land, the work and labor performed by plaintiff in the demolition and removal of the old building as a necessary step preparatory to the erection of the new building was performed in the "erection" of the new building within the meaning and purpose of our statutes governing mechanics' liens. R.S. Mo. 1939, sec. 3546; Bruns v. Braun, 35 Mo. App. 337; Pratt v. Nakdimen, 99 Ark. 293, 138 S.W. 974; Ketcham v. Land Title Co., 257 Pa. 391, 101 Atl. 764; Ward v. Crane, 118 Cal. 676, 50 Pac. 839; Peaceable Creek Coal Co. v. Jackson, 26 Okla. 1, 108 Pac. 409; 63 A.L.R. 1250, note; 40 C.J. 69, note; Ann. Cas. 1912B 15, note; 18 R.C.L., sec. 44, p. 914, note; 36 American Jurisprudence (1941), sec. 63, p. 53, note. (2) Our courts now consistently hold that our mechanics' lien statutes are highly remedial in their nature, and should be liberally construed to advance the just and beneficent objects had in view in their passage. Carroll Construction Co. v. Newsome, 201 Mo. App. 117, 210 S.W. 114; Fagan v. Brock Motor Car Co. (Mo. App.), 282 S.W. 135; Leach v. Bopp, 223 Mo. App. 254, 12 S.W. (2d) 512; State ex rel. Winebrenner v. Detroit Fidelity & Surety Co., 326 Mo. 684, 32 S.W. (2d) 572; St. Louis Concrete Products Mfg. Co. v. Walker (Mo. App.), 64 S.W. (2d) 131; Harry Cooper Supply Co. v. Rolla Nat. Bldg. Co. (Mo. App.), 66 S.W. (2d) 591; Concrete Engineering Co. v. Grande Bldg. Co., 230 Mo. App. 443, 86 S.W. (2d) 595; Major v. McVey (Mo. App.), 94 S.W. (2d) 1122; Miners Lumber Co. v. Miller (Mo. App.), 117 S.W. (2d) 711; Fuhler v. Gohman & Levine Const. Co., 346 Mo. 588, 142 S.W. (2d) 482.

HUGHES, P.J.

This is an action to enforce a lien under the statute entitled, "Liens of Mechanics and Materialmen" (Sec. 3546 et seq., R.S. 1939), for work or labor performed by plaintiff in hauling away debris and material from, and hauling necessary tools and materials to, a building being wrecked and removed from a lot located at 6th and St. Charles street, St. Louis, Missouri, in order to clear the ground for the erection of a new building.

Peter A. O'Neil Estate owned the fee in the lot and the old building, and the Karon Realty Company was the owner of a 99 year leasehold thereon, by the terms of which it was required to erect a new building in place of the existing building, and the Lerner Shops of Missouri, Inc., was the owner of a 25 year leasehold from Karon Realty Company, which likewise obligated it to erect a new building in place of the existing building, the plans therefor to be approved by both the Karon Realty Company and the Peter A. O'Neil Estate. The Lerner Shops submitted plans and specifications for the new building, the cost estimate including the wrecking of the old building; which were approved in writing by Karon Realty Company and Peter A. O'Neil Estate.

Thereafter Lerner Shops contracted with Fruin Colnon Contracting Company to wreck the old building and erect the new building, and the latter company contracted with G.H. Shartzer for wrecking and removing the old building. Thereupon Shartzer entered into an agreement with plaintiff to furnish trucks and labor to haul necessary tools and material to the old building and to haul away the wreckage of the old building. Plaintiff fully complied with its agreement, and its bill in the sum of $1792.26 has never been paid by Shartzer or anyone else.

In the circuit court plaintiff had judgment by default against defendant Shartzer for $1792.26, and for $268.83 interest, aggregating $2061.09 and for costs. And upon trial plaintiff was given a lien upon the interest of the Peter A. O'Neil Estate, Karon Realty Company, and Lerner Shops of Missouri, Inc., and the three last-named defendants appeal.

Appellants' contentions are, that (a) plaintiff's claim against Shartzer was not predicated on lienable charges; (b) that plaintiff did not perform any work or labor upon or furnish any material for the erection of the new building, and (c) that plaintiff furnished trucks and drivers to haul away debris from a wrecked building for which the statutes do not provide a lien. No question is raised as to the amount of plaintiff's claim being just and reasonable for the services performed, nor of the proper and timely filing of the lien and giving the required notices, and there is no contradiction of plaintiff's evidence that it furnished the services sued for upon the faith and credit of a lien upon the premises and building. Therefore, the only issue presented is whether a mechanic's lien will be allowed for work and labor performed in the wrecking and removal of an old building even though such work and labor is performed persuant to an integral contract for the removal of an old building and the erection of a new building at the same site. The question has never been directly determined by any of our Appellate Courts.

Section 3546, Revised Statutes 1939, provides:

"Every mechanic or other person, who shall do or perform any work or labor upon ... any building, erection or improvements upon land ... under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor ... shall have for his work or labor done ... a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, ..."

Even though liberally construed as it should be the statute does not go so far as to authorize a lien on the real estate to which it is attached for the mere wrecking and removal of a building. We may go further and say that the statute gives no lien on the real estate in any case except as correlative to a lien on a building, erection or improvement, and then upon the theory that the building, erection or improvement has been a benefit to the realty and enhanced its value. This was definitely decided in the case of Holtzhour v. Meer, 59 Mo. 434, wherein the suit was for work done in tearing down an old house and "nothing was put on — no improvements were made," and the Supreme Court affirmed the judgment of the circuit court denying the right to a lien. That case is clearly distinguishable from this wherein the entire work of removing the old and erecting the new building was performed pursuant to an indivisible contract for the improvement of the owners and lessees property. Whether performed by the original contractor in person, or by sub-contractors for the several parts of the work, the object and purpose of the owner and lessees was to have erected a new building on a site occupied by an old building, and the whole was incorporated in one integral contract for the improvement of the owners and lessees property; the contract was impossible of fulfillment without the removal of the old building; that work was a part and parcel of the whole scheme involved in the erection of a new building, and was within the contemplation of both the owner and lessees, on the one part, and the contractor, on the other part, and expressly provided for in their contract. Then how could it be reasonably said, under such circumstances, that the preparation of the site by the removal of the old building was not an integral and constitutive part of the erection of the new building? There was only one settlement to be made by the lessee with the contractor, and that was for a completed new building which included the demolition of the then existing building. Under such circumstances this court has held in the case of Bruns v. Braun, 35 Mo. App. 337, that a lien was authorized because the parties had in contemplation that the whole work should form but one and not distinct matters of settlement. In the Bruns case this court, following the Kansas City Court of Appeals, stated the applicable principles of law as follows:

"The Kansas City Court of Appeals in case of Page v. Bettes, 17 Mo. App. 375, says: `When work, distinct in its nature is performed at different times, the law supposes it to have been performed under distinct engagements, as when the work at one time is for building, and at another time for repairing. So, when two distinct contracts are in fact made, as for different parts of the work, the work done under each contract must be considered as entire of itself. But when work, or material, is done, or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts...