North Elec. Co. v. Satallite Communications
| Decision Date | 02 October 1979 |
| Docket Number | No. 41108,41108 |
| Parties | NORTH ELECTRIC COMPANY, Plaintiff-Appellant, v. SATALLITE COMMUNICATIONS and Be Mac Transportation Company, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
William F. Sindel, Sindel, Sindel & Sindel, St. Louis, for plaintiff-appellant.
Evans & Dixon, Gerre S. Langton, St. Louis, for defendants-respondents.
Plaintiff-appellant North Electric Co. filed a petition in St. Louis Circuit Court seeking a judgment for materials furnished to Satallite Communications for construction of a building on property alleged to be owned by respondent Be Mac Transport Company, Inc. The petition prayed for judgment against Satallite for $9,315.86 and that it be declared a lien on Be Mac's property which was described in the petition.
Default judgment was obtained against Satallite for the full amount prayed, but Be Mac's motion to dismiss North Electric's petition against it was granted without prejudice. The substance of Be Mac's motion to dismiss was based on three contentions: that North Electric failed to comply with § 429.080, RSMo 1969 in failing to timely file a proper mechanic's lien statement with the circuit clerk's office; that North Electric's petition failed to properly incorporate the statement of account by reference; that the petition was indefinite in failing to include a statement of account. We reverse and remand.
North Electric's petition in pertinent part states:
Plaintiff (North Electric) states that the defendant, SATALLITE COMMUNICATIONS, is justly indebted to pay the sum of $9,315.86 for materials furnished from March 23 to April 15, 1977, at the request of defendant, SATALLITE COMMUNICATIONS, As per the following account showing the items furnished, together with the prices charged therefor, which said account is as follows:
That said materials were furnished for and were actually used for the construction of a certain two-story office building, which said building is situated on the following described lot, tracts, or parcels of land, to wit: * * * (emphasis added)
A description of Be Mac's real estate then followed. Attached to the petition were three invoices in the net sum of $9,315.86 showing certain items of materials "shipped to Be Mac Transport, Inc. c/o Satalite (sic) Comm". Then followed the allegation that demand became due on April 15, 1977 and within four months thereafter an account for purposes of a mechanic's lien was filed in the St. Louis circuit clerk's office; that more than ten days prior to the filing of the account, North Electric gave written notice to Be Mac of its claim against the real property. Be Mac's motion to dismiss the plaintiff's petition was granted with this appeal following.
In viewing a petition under attack by motion to dismiss, we give it the benefit of every reasonable intendment favorable to the pleader and judge it with broad indulgence. Tyler v. Whitehead, 583 S.W.2d 240 (Mo.App.1979); Butler v. Circulus, Inc., 557 S.W.2d 469 (Mo.App.1977). In so doing, we find that North Electric's petition and claim for mechanic's lien sufficiently alleges facts necessary for securing a mechanic's lien as required by § 429.180, RSMo 1969. This is not to state, of course, that North Electric is relieved of its responsibility to prove the allegations contained in its petition. We only find, for the reasons which follow, that the petition itself states a justiciable claim.
The invoices of items of account for materials allegedly furnished by North Electric were attached as exhibits to the petition. Giving broad meaning to the words of the petition "as per the following account showing the items thereof and the details of all said materials so furnished, together with the prices charged therefor, which account is as follows . . .", we view the invoices as forming an integral part of North Electric's petition. Burckhardt v. General Am. Life Ins. Co., 534 S.W.2d 57 (Mo.App.1975). While no paradigm to follow as it could and should have been more precise in its reference to the invoices, the petition is sufficient to state a cause of action. We are not so finicky as to require as Be Mac urges that...
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