Powers And Boyd Cornice & Roofing Co. v. Muir
| Decision Date | 30 November 1909 |
| Parties | POWERS AND BOYD CORNICE AND ROOFING COMPANY, Respondent, v. MATTHEW W. MUIR et al., Defendants; TRUST COMPANY OF ST. LOUIS COUNTY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.
AFFIRMED.
STATEMENT.--Action to establish a mechanic's lien was brought by plaintiff a subcontractor in the erection of the building, against Muir, the principal contractor, Epworth Hotel Construction and Real Estate Company, hereafter referred to as the hotel company, owner of the premises at the time the material was furnished and labor done, and the Trust Company of St. Louis County, hereafter referred to as the trust company, holder of a deed of trust on the property, and also grantee of Thomas K. Skinker, the latter having purchased the property at a sale by the assignee of the trust company. It appeared by the answer of Mr. Skinker, as well as by the averments of the petition, which were not denied, that on the 20th of February, 1905, the trust company, being assignee of the hotel company, offered the property for sale at public auction, subject to a deed of trust in which it was trustee "and subject to all mechanics' liens against said property," and that at that sale the property was bought in by Mr. Skinker, "subject to the trust indebtedness and the mechanics' liens," but that in bidding in the property Mr. Skinker had acted for the trust company, and he appears to have conveyed all his interest in it to that company, so that while made a defendant originally, the case was dismissed as to him. Another party, a Mr. Wilke, was also originally made defendant as the holder of the notes secured by the deed of trust above mentioned, but Mr. Wilke died pending the action and it was dismissed as to him.
The mechanic's lien notice and claim was filed in the office of the circuit clerk of St. Louis county February 21, 1905. In this notice it is stated that the account filed by plaintiff with the view to avail itself of the benefit of the mechanics' lien statute, is for work and labor done and materials furnished by plaintiff under a contract with M. W Muir, original contractor, with Epworth Hotel Construction and Real Estate Company, owner, "upon, to and for the buildings and improvements described as follows, to-wit: one three-story brick and frame hotel building, known as 'Hotel Epworth,' No. 6600 Washington avenue, St. Louis county, Missouri, and situate on the following described premises, to-wit: lots 1, 2, 3, 4, 5 and 6, of block 2, of a subdivision in United States Survey No. 378, township 45, range 6, situated in the county of St. Louis, State of Missouri, a plat of which subdivision is of record in the office of the recorder of deeds of St. Louis county, Missouri, in plat book No. 2, page 60. Said lots are contiguous to each other, having an aggregate front of three hundred feet on the south line of Rosedale Place by a depth south with that width of two hundred feet to an alley, said subdivision being known and designated as Rosedale Heights and being the same property described in a certain deed of trust recorded March 10, 1904, in book 148, page 334, of the records of the office of the recorder of St. Louis county, Missouri, said premises buildings and improvements belonging to and being owned by Epworth Hotel Construction and Real Estate Company, which said account, the same being hereby filed, in order that it may constitute a lien upon the buildings, improvements and premises above described, is as follows:" Then follows the account showing debits and credits. The account, dated December 28, 1904, against defendant Muir, in favor of plaintiff, sets out the items of debit without dates to them, totalling $ 2209.61, followed by cash credits, date of each payment being given and amounting to $ 809.61, leaving a balance due of $ 1400, which is the amount sued for with interest. This account is followed by this statement: "That the first item of labor and material of said account was furnished on the 23d day of February, 1904, and the last item thereof was furnished on the 20th day of December, 1904, on which last named day said account accrued and became due and payable and all of said items constituted one continuous account." The affidavit following the account is in the usual form, stating that the foregoing is a true description of the property, "upon, to and for which said materials were furnished, and said work and labor done and to which this lien is intended to apply, or so near as to identify the same." The affidavit further avers that at least ten days prior to the filing of the lien, plaintiff gave notice to the Hotel Company, as owner of the property, and to the Trust company, as assignee of the hotel company, of its claim, etc., and of its intention to file a lien therefor, and that the Hotel Company, at the date of the furnishing of the material and labor, was and still is, as affiant is informed and believes, the owner of the premises and of the buildings and improvements thereon, "which said premises, buildings and improvements are intended to be charged with this lien." There is no question over the fact of this notice having been given to the owners. The deed of trust under which the defendant Trust Company claims is dated March 7, 1904.
In the original petition filed in this case, the premises are described as above. The second amended petition, after averring that the hotel building was erected on all of lots 1 to 6 inclusive, and that it does not cover the whole of any one of the lots, and that said lots by actual measurement include a little more than one acre, "avers that said hotel building and all parts of it are erected upon the parts and parcels of lots, described as follows, to-wit: Beginning," etc. Here follows a description by courses and distances, concluding with the statement that the area described contains "a fraction less than one acre." This particular description was afterwards amended in this second amended petition, upon which petition the case went to trial, the description in the final amended petition, after giving the description of the lots as in the first petition, continuing to and including the words "beginning," describes the property by courses and distances and by boundaries, and concludes with the statement that the area described contains "one acre." The prayer of the amended petition was for the enforcement of the lien "against so much of lots 1 to 6 as is included within these boundaries." At the trial it was in evidence that the survey and the description as last above given was made by the county surveyor of the county. Evidence was also given tending to show that the account filed was correct, there being much controversy, however, over items amounting to $ 117.65 which were included in the account but which, as claimed, were not specified or included in the original bid by the Trust Company. The defendant Trust Company, upon this appearing in evidence, and at the close of all the evidence in the case, moved that the plaintiff be required to elect whether or not it would stand on the item referred to, "or on the rest of the lien set forth in the petition." Plaintiff refusing to elect, the court overruled the defendant's motion and defendant excepted.
There was also much contention in the progress of the trial over the introduction of copies of correspondence and proof of acceptance of the bid of the plaintiff by Muir, the contractor, defendants contending that sufficient preliminary proof of loss of originals had not been introduced to warrant resort to secondary evidence by way of copies or by way of parol.
The case was tried before the court, a jury having been waived. No declarations of law were asked or given. The court, having taken the case under advisement, found the issues for the plaintiff and entered up judgment against defendant Muir for the debt, and establishing the claim as a lien on the buildings and premises as described in the second amended petition, as superior to the lien of the deed of trust or claim of the Trust Company. The Trust Company in due time filed a motion for a new trial which was overruled and an appeal taken by it to this court.
Judgment affirmed.
T. K Skinker and C. R. Skinker for appellant.
(1) The mechanic's lien claim is void because it describes and demands a lien on more than one acre of land. It should not have been received in evidence. R. S. 1899, sec. 4203; Perkins v. Boyd (Colo.), 86 P. 1045; Poppert v Wright, 52 Mo.App. 576; Engleman v. Graves, 47 Mo. 348; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Ranson v. Sheehan, 78 Mo. 668; Mayes v. Murphy, 93 Mo.App. 37; Lumber Co. v. Harris, 107 Mo.App. 148; Holland v. McCarty, 24 Mo.App. 82; Seibel v. Siemon, 5 Mo.App. 305; Othenin v. Brown, 66 Mo.App. 318; McWilliams v. Allen, 45 Mo. 573; Planing Mill Co. v. Allison, 138 Mo. 50; Rall v. McCrary, 45 Mo.App. 365; Cowie v. Ahrenstedt, 1 Wash. 416; Iron Works v. Dorman, 78 Ala. 218; Bedsole v. Peters, 79 Ala. 133; Furnace Co. v. Witherow, 149 U.S. 574; Lemley v. LaGrange, etc., Co., 65 Mo. 545; Tuttle v. Howe, 14 Minn. 145. (2) The lien claim is fatally defective because no date is specified at which was furnished any one of the items of material or labor, and especially no date is specified for the items not furnished under the original contract. Hayden v. Wulfing, 19 Mo.App. 353; Bruns v. Braun, 35 Mo. 337; Livermore v. Wright, 30 Mo. 31; Kearney v. Wurdeman, 33 Mo.App. 447; Kern v. Pfaff, 44 Mo.App. 29; Curless v. Lewis, 46 Mo.App. 278. (3) The court erred in admitting (a) letter press copy of alleged letter of Powers & Boyd addressed to M. W. Muir, dated February 17, 1904, containing bid for...
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