Raithel v. Hamilton-Schmidt Surgical Co.

• Citation: 48 S.W.2d 79
• Decision Date: 05 April 1932
• Docket Number: No. 21909.,21909.
• Parties: RAITHEL v. HAMILTON-SCHMIDT SURGICAL CO. et al.
• Court: Missouri Court of Appeals

48 S.W.2d 79

RAITHEL v. HAMILTON-SCHMIDT SURGICAL CO. et al.

No. 21909.

St. Louis Court of Appeals. Missouri.

April 5, 1932.

Rehearing Denied April 19, 1932.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Suit by George E. Raithel, doing business as the Geo. E. Raithel Manufacturing Company, against Bernard G. Keller, doing business as the Keller Construction Company, wherein the Hamilton-Schmidt Surgical Company was garnished. Judgment for garnishee, and plaintiff appeals.

Affirmed.

O. E. Woods, of St. Louis, for appellant.

Byron F. Babbitt, of St. Louis, for respondent.

SUTTON, C.

The facts of this case, as shown by an agreed statement, on which the case was tried, are substantially as follows:

The plaintiff George E. Raithel, doing business as Geo. E. Raithel Manufacturing Company, obtained a judgment against the defendant Bernard G. Keller, doing business as Keller Construction Company, in the court of A. A. Ladd, a justice of the peace in and for Central township, St. Louis county, Mo., on October 3, 1929, for the sum of $300 principal and $30 interest, making a total judgment of $330, and costs of the action. A transcript of said judgment was duly filed in the circuit court of St. Louis county on July 19, 1930, and an execution was duly issued on said judgment out of the circuit court, directed to the sheriff of the city of St. Louis, on November 14, 1930, returnable to the January term, 1931, of said court. A writ of garnishment, based on said execution, was served on the Hamilton-Schmidt Surgical Company, on November 18, 1930.

The garnishee occupies the storeroom and place of business located at 217 North Tenth street, in the city of St. Louis, as lessee under a lease made to it by the Walgreen Drug Company; said lease commencing on December 1, 1930, and ending November 30, 1940. The lease is not for the entire building, which is known and described as 1000 Olive street, St. Louis, but only for "the store room known and described as 217 North Tenth Street, together with additional space on the second floor of the building known as 1000 Olive Street, to be occupied for the display and sale of surgical supplies." Other tenants also occupy said building beside the garnishee, and said garnishee only occupies the space above described. On October 27, 1930, the garnishee entered into a contract with the defendant Keller, whereby said defendant agreed to make certain additions, changes, and alterations in the leased store room known as 217 North Tenth street, and the additional space on the second floor of said building, known as 1000 Olive street; said additions, changes, and alterations in said leased premises consisting of the installation of balconies, stairways, window bulkheads for display purposes, balusters, fitting rooms, partitions, and electric outlets, all of which were necessary to be made in the demised premises in order that the same might be suitable for the conduct of garnishee's business. The contract price for the said improvements was $1,360, payable, $500 during the progress of the work, $500 thirty days after the completion, and $360 sixty days after the work was finished. The additions, changes, and alterations contracted for were still in progress on November 18, 1930, when the garnishee was served with the garnishment writ, but the job has since been, and is now, fully completed. Prior to the service of the garnishment writ, the garnishee paid the defendant $500, pursuant to the terms of said contract. After the garnishee was served with the writ, at the request of the defendant, but without the knowledge or consent of plaintiff, the garnishee paid on account of said work, to workmen and materialmen employed on, and who furnished material for the same, as follows: Wages to workmen actually employed in said work, $172; Ed C. Klopsteir, granitoid and cement work, $55.44; W. M. Small, plastering, $135; Berger Manufacturing Company, metal work, $34.12 — a total of $399.56. The garnishee still retains in its possession the sum of $460.44, the balance due on the contract at this time.

The defendant Keller has failed to pay divers subcontractors and materialmen for materials by them supplied, and actually used in said work, and demand for the payment of said claims and notices of intention to file mechanics' liens therefor were, prior to the filing of garnishee's answers to the plaintiff's interrogatories herein, but subsequent to the service of the garnishment writ, served upon garnishee herein by the persons, firms, and corporations furnishing the same, in names and in amounts as follows: Gerst Brothers Manufacturing Company, $299.70; W. J. Croghan, $105; United Lumber Company, $124.50 — a total of $529.20. Other similar claims may be still outstanding and unpaid by Keller, of which garnishee is not presently advised. No mechanics' liens have yet been filed, or suits to foreclose such liens yet instituted; but the time within which such mechanics' liens may be filed, or suits to foreclose the same be instituted, has not yet expired.

Defendant is a married man and the head of a family, and as such, claims as exempt from execution and garnishment the sum of $300.

The trial resulted in a judgment for the garnishee, and plaintiff appeals.

The garnishee contests the right of plaintiff to recover under the garnishment on account of the liens of mechanics and materialmen on its leasehold, arising under the provisions of section 3160, R. S. 1929.

The plaintiff contends, however, that the mechanics and materialmen are not entitled to liens on the leasehold, for the reason that the lease under which the garnishee holds is for only a part of the building. We regard this contention as untenable. We can see no sound reason why these mechanics and materialmen are not entitled to liens for their work and materials on the garnishee's leasehold, which, of course, includes whatever interest or right it has in the building and lot, by virtue of its lease. We think the...