P. M. Bruner Granitoid Co. v. Klein

• Decision Date: 17 March 1903
• Citation: 73 S.W. 313,100 Mo. App. 289
• Parties: P. M. BRUNER GRANITOID CO. v. KLEIN et al.
• Court: Missouri Court of Appeals

73 S.W. 313

100 Mo. App. 289

P. M. BRUNER GRANITOID CO. v. KLEIN et al.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

MECHANIC'S LIEN—NOTICE OF CLAIM—SERVICE ON EXECUTORS OF OWNER.

1. In a proceeding to enforce a mechanic's lien, notice of demand served on the two executors of the owner of the property as executors was sufficient to notify the four trustees vested with title to the property under the will, even if the trustees were the proper persons to be notified, where the executors were also trustees, and the will provided that a majority of the trustees could perform any act that the trustees were empowered to perform.

2. Rev. St. 1899, § 4212, provides that where a property owner, who has contracted for an improvement, dies while there is a lienable demand outstanding against the property, his executors or administrators must be made parties to an action to enforce the lien, and that it is unnecessary to make his heirs or devisees parties, unless there is no executor or administrator. Held, that the executor, and not the trustees, to whom the property has been devised, tees, to whom the property has been devised, are the proper parties on whom to serve notice of demand in a proceeding to enforce the lien.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Action by the P. M. Bruner Granitoid Company against F. B. Klein and Charles H. Peck's executors. From a judgment for plaintiff, defendant executors appeal. Affirmed.

S. T. G. Smith and T. S. Meng, for appellants. Alex. Young and Max Ruler, for respondent.

Statement of Facts and Opinion.

GOODE, J.

The defendant Klein did the granitoid and concrete work in the basement of a building erected by Charles H. Peck on a lot in the city of St. Louis. The Bruner Granitoid Construction Company furnished Klein about 88 tons of crushed granite, of the value of $228.50, which Klein used in doing the work, but did not pay for. The job was finished the latter part of June, 1899, and on the 3d day of the ensuing July Charles H. Peck, the owner of the property, died, leaving a will, of which the defendants Stephen and John A. Peck qualified as executors July 14th. In October following, plaintiff filed a lien account in the office of the clerk of the circuit court of the city of St. Louis, having previously, and in due time, served notice in writing on Stephen and John A. Peck of its claim. This action was instituted to enforce that lien. Klein defaulted. The defense by the executors is that the will of Charles H. Peck vested the title to the property in four trustees, to wit, Stephen, John A., and Belle Peck and Rebecca Dusenbery, and that said trustees were not notified of plaintiff's demand.

The notice, as stated, was given to the executors of Charles H. Peck's will as such, but those executors were likewise two of the trustees appointed by the will. One clause of the will in regard to the duties of the trustees provides that a majority of them may perform any act which the trustees are empowered to perform except certain enumerated acts. Undoubtedly, the notice to Stephen and John A. Peck, although it was served on them as executors, sufficed to notify them...