Progress Press Brick & Machine Co. v. Gratiot Brick & Quarry Co.

• Citation: 52 S.W. 401,151 Mo. 501
• Parties: Progress Press Brick & Machine Company, Appellant, v. Gratiot Brick & Quarry Company et al
• Decision Date: 12 July 1899
• Court: Missouri Supreme Court

52 S.W. 401

151 Mo. 501

Progress Press Brick & Machine Company, Appellant, v. Gratiot Brick & Quarry Company et al

Supreme Court of Missouri, First Division

July 12, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Reversed and remanded (with directions).

Lee W Grant and Lubke & Muench for appellant.

(1) The first declaration of law given at the request of the defendants was erroneous, for, "there is no provision of the statute requiring a separate account to be filed for each separate contract under which materials may have been furnished, though the material may be entirely different and the contracts independent. . . . The statute evidently only contemplated filing one account, and no reason can be seen for adding anything to its requirements." Grace v Nesbitt, 109 Mo. 16; Kerr v. Pfaff, 44 Mo.App. 30; Kearney v. Wurdeman, 33 Mo.App. 447. (2) The press put up by plaintiff became part of the building. The kilns for which the brick were used also became a part of the building. It was one structure, and is subject to mechanic's lien as one entire thing, including the boiler, engine, machinery, conveyors and all other attached appliances. The intention of the owner to attach all these improvements permanently to the buildings as part thereof is very apparent. It was designed to be, and was, in fact, made one entire manufacturing plant with every department in it as a necessary adjunct or artery to give life to the whole. Thomas v. Davis, 76 Mo. 72; N. Y. Security Co. v. Saratoga Co., 34 N.Y.S. 890; Rogers v. Crow, 40 Mo. 95; Chapman v. Ins. Co., 4 Ill.App. 29; Oves v. Oglesby, 7 Watts 106; Shepard v. Blossom, 69 N.W. 221; Goodin v. Elleardsville Hall, 5 Mo.App. 289; Cooke v. McNeil, 49 Mo.App. 81; O'Brien v. Hanson, 9 Mo.App. 545; Heidegger v. Atlantic Mill Co., 16 Mo.App. 327; Sosman v. Conlon, 57 Mo.App. 25; Allen v. Frumet Mining Co., 73 Mo. 688; Watts-Campbell Co. v. Juengling, 125 N.Y. 1; Morgan v. Arthurs, 3 Watts 140; Meek v. Parker, 63 Ark. 367; Haskin-Wood Vulcanizing Co. v. Building Co., 26 S.E. 878; Green v. Phillips, 26 Gratt. 752; Buchanan v. Cole, 57 Mo.App. 11; Foundry & M. Co. v. Cole, 130 Mo. 1. (3) Even if the trial court had regarded the press house and clay sheds as separate structures, yet a lien should have been granted for the plant, for they were constituent parts of a whole. Either part was useless without the other. The lots, though separate on the plat, yet were used together. The streets on which they fronted had been vacated, and they with other lots were used as one tract of land, on which the defendant had erected its plant. Lindsay v. Gunning, 59 Conn. 296; Lavman's Appeal, 8 Pa. St. 477; Bodley v. Denmead, 1 W.Va. 249; Premier Steel Co. v. McElwain Co., 43 N.E. 876; Edwards v. Derrickson, 28 N. J. L. 39; Linden Steel Co. v. Rough Run Co., 158 Pa. St. 238; Curran v. Smith, 37 Ill.App. 69; Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440.

Farish & Williams for respondents.

(1) The appellant was not entitled to lien for either claim, and the instructions given properly announced the law and the appellant's instruction was properly refused. It can not be claimed that these different improvements made by the Gratiot Brick & Quarry Company upon its property were one structure, covered by one roof. Or that it was like one building, with so many rooms or apartments in it as instanced by appellant. There is no connection whatever between the brick and the brick press machine. They were furnished under separate and distinct contracts, on separate and distinct lots, and therefore can not be embodied in one lien. Miller v. Herbert, 62 Mo.App. 682. Neither as to the brick nor the brick machine is plaintiff entitled to a lien. No lien is given upon the press brick machine itself. Nor upon the building to which it is furnished, where, as in this case, the same was not furnished in the erection or improvement of the building, and as a part of the contract therefor, but separately and distinctly from the building, and under a separate contract, having no reference whatever to the building, and embracing merely the furnishing and delivery of the machine to the respondent, who put it up in said old building, which was merely used as a cover to house said press brick machine. Nor is any lien given the appellant upon the brick, which were furnished to construct the kilns, and used therein, and for the furnace for the boilers, and the mouths of sewers, leading into the drains. R. S. 1889, sec. 6705; Collins v. Mott, 54 Mo. 100; Graves v. Pierce, 53 Mo. 423; Richardson v. Koch, 81 Mo. 264; Goodin v. Elleardsville Hall, 5 Mo.App. 289; Hiedegger v. Atlantic Milling Co., 16 Mo.App. 327; O'Brien v. Hanson, 9 Mo.App. 81; Cook v. McNeal, 49 Mo.App. 81; Sasman v. Conlin, 57 Mo.App. 25; Huessler v. Missouri Glass Co., 52 Mo. 452; Graves v. Pierce, 53 Mo. 423; Hall v. St. Louis Mfg. Co., 22 Mo.App. 33; Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 512; Schulenberg v. Prairie Home Institute, 65 Mo. 295; Schulenberg v. Hawley, 6 Mo.App. 34; Current River Lumber Co. v. Cravens, 54 Mo.App. 216. (2) As to the construction to be put upon section 6729, Revised Statutes 1889, it will be found that where there is more than one building, it is necessary to file a separate lien upon each building, for the work done or materials furnished in the erection thereof, unless such materials were furnished under one general contract. Miller v. Herbert, 62 Mo.App. 682; Bruns v. Braun, 35 Mo.App. 337; Dugin v. Higgs, 43 Mo.App. 161; Allen v. Smelting Co., 73 Mo. 688; Kearney v. Wurdeman, 33 Mo.App. 447; Henry v. Mahone, 23 Mo.App. 83; Gauss v. Hussman, 23 Mo.App. 115.

MARSHALL, J. Valliant, J., not sitting.

OPINION

MARSHALL, J.

This is an action to establish a mechanic's lien.

The petition is in two counts. The first count alleges that the Gratiot Brick & Quarry Company bought of the plaintiff hard bricks to the amount of $ 1,000; that said bricks were furnished for and used in the construction of a one and two-story brick and frame structure, containing clay sheds, brick kilns, press, machine and boiler house and appurtenances, known as a brick plant, erected on certain real estate described, comprising seven contiguous lots; that the fee simple title to the real estate was in the Gratiot Brick & Quarry Company at the dates of furnishing said materials; that on the 28th day of February, 1896, the Gratiot Brick & Quarry Company executed a certain deed of trust to Robert P. Williams, trustee for the American Exchange Bank, on these lots and other lots; that prior to these events, on the 10th day of May, 1893, Daniel McAllister and J. G. Hardy, who at that time owned said premises, executed a deed of trust on the same to Robert W. Frank, trustee for Albert J. Frank, securing an indebtedness therein described, which said indebtedness is now owned by defendant, C. Herman Beckman; that a general voluntary assignment was made by the Gratiot Brick & Quarry Company to defendant John G. Parrish, on the 28th of February, 1896; that the said bricks were furnished continuously from the 6th of August, 1895, to the 29th of August, 1895, when the demand accrued; that plaintiff filed its lien account on the 25th of February, 1896; that no part of said account has been paid.

The second count alleges that on the 31st of July, 1895, plaintiff contracted to furnish for the defendant, Gratiot Brick & Quarry Company, for the sum of $ 5,000, a six-mold press brick machine complete upon foundations; that said press should be able to make 30,000 good bricks per day of ten hours. The plaintiff furnished said machine for the one and two-story brick and frame structure heretofore described, and situated upon the same premises; that said machine was furnished by plaintiff and accepted by defendant on September 24, 1895, and became a part of said frame and brick structure at said date; that there had been paid, in the shape of stock, $ 2,000 on the purchase price of said machine; that the balance, $ 3,000, is still due and unpaid; that the lien account was filed on the 25th of February, 1896.

Gratiot Brick & Quarry Company made default. Defendants Robert P. Williams, trustee, American Exchange Bank, Robert W. Frank, trustee, and J. G. Parrish, assignee, answered admitting that the title to the premises in question was as stated in the petition and admitting the transfers as alleged in the petition, but denying all the other facts.

The trial developed these facts: Prior to August 5th, 1895, one McAllister owned lots 5 to 21 inclusive in City Block 4777 of the city of St. Louis, and had commenced the construction of a dry pressed brick plant thereon, the buildings needed therefor resting on parts of lots 11, 12, 13, 14, 15, 16, and 17. He sold the premises to the defendant, who continued and completed the erection of the improvements, for the same purposes. The plant consisted of a press house, office boiler and engine room, kilns and day sheds, which were so constructed that the whole was covered by one continuous roof, in order to go from one part to the other without exposing the dry clay to the elements; the part called the press house was inclosed on all sides, was a frame building, two stories high with a gravel roof; the whole plant was used as one plant and the several parts were necessary to make up the whole plant, which would not be a complete plant if any of the parts were omitted. After the defendant purchased the premises, it bought from the plaintiff 202,000 hard bricks (for $ 1,111) which were used in constructing the kilns, and also bought one six-mold pressed brick machine, weighing over 52,000 pounds, which was also necessary to complete the plant, and which was placed in the press-house on...