Reese v. Cibulka

• Decision Date: 06 March 1934
• Docket Number: No. 22861.,22861.
• Citation: 68 S.W.2d 902
• Parties: REESE v. CIBULKA et al.
• Court: Missouri Court of Appeals

68 S.W.2d 902

REESE v. CIBULKA et al.

No. 22861.

St. Louis Court of Appeals. Missouri.

March 6, 1934.

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

"Not to be published in State Reports."

Suit by Jesse Reese against William G. Cibulka and wife, John E. Sheeks and wife, the American Furnace Company, and others, in which the defendant last named filed a cross-bill. From a judgment for plaintiff and for the last named defendant, the other named defendants appeal.

Affirmed in part and reversed in part.

Lloyd W. Holmes, of Clayton, for appellants.

Alvin Goldman, Robert A. Thomann, and Louis E. Zuckerman, all of St. Louis, for respondent Jesse Reese.

Milton C. Lauenstein, of St. Louis, for respondent American Furnace Co.

BENNICK, Commissioner.

This is an equitable mechanic's lien suit which is brought by plaintiff, Jesse Reese, who becomes a lien claimant by reason of work or labor performed upon the property in question, a two-story residence at 313 Arbor lane, in Webster Groves, Mo. The defendants include all parties regarded by plaintiff as interested in the property sought to be charged with liens, along with three other lienors, among whom was respondent American Furnace Company, a materialman.

The claims of plaintiff and of the American Furnace Company were the only ones contested below; and the appeal relates only to the merits of such claims as they afforded the basis for the adjudication of liens against the property. The sole appellants are Wm. G. Cibulka and Alice M. Cibulka, his wife, and John E. Sheeks and Vera M. Sheeks, his wife, in whose names title to the property stood at the time of the completion of the work.

There is some dispute between the parties about whether defendant Herman Hoyer, whose name figures prominently in the case, was the original owner of the property, or merely the general contractor. At least plaintiff's contract was with Herman Hoyer, the same having been entered into on February 23, 1929, and made to cover the matter of the carpenter work in connection with the erection of the building. Plaintiff's work was done between March 4, 1929, and June 7, 1930. In the trial of the case, the issue raised as to the merits of plaintiff's claim was that it was not a just and true account, because credit had not been given for everything that was due defendants. The judgment of the court was for plaintiff, and against defendant Herman Hoyer, for a total of $493.49, together with a lien upon the property, the same to be prior and superior to the liens of the deeds of trust outstanding against the property. It is to be kept in mind throughout that defendant Herman Hoyer is not a party to this appeal.

So far as concerns the record title to the property, it was shown that prior to June 13, 1929, title was in the S. & H. Realty Company, a corporation, of which defendant Herman Hoyer was secretary; that on June 13, 1929, by warranty deed attested by himself as secretary, title to the land in question as well as to an adjoining lot was transferred from the S. & H. Realty Company to defendant Herman Hoyer for a recited consideration of $100; that on January 8, 1930, defendant Herman Hoyer, by a deed in which he was joined by his wife, Nora K. Hoyer, conveyed the property to his mother, Louisa Hoyer; and that on April 24, 1930, Louisa Hoyer, by warranty deed, conveyed the property to the four appellants herein.

Defendant Herman Hoyer was the moving spirit throughout the entire transaction. Some time prior to the completion of the building, and while the record title was still in the name of Louisa Hoyer, appellants looked at the house with a view to buying it. Defendant Herman Hoyer showed them through the house and negotiated the sale, arranging with appellants to look after the completion of the building, including the installation of a heating system, all to be done by May 1, 1930. On April 25, 1930, the day after appellants acquired title from Louisa Hoyer, respondent American Furnace Company delivered a furnace to the house, and the furnace was duly installed by May 1, 1930, the day appellants moved into the house. Judgment went for respondent American Furnace Company, and against the four appellants, for the total sum of $295.63, together with a lien likewise adjudged to be prior and superior to the liens of the deeds of trust.

In so far as the pleadings may be of importance, their contents will be referred to in connection with particular matters subsequently arising for decision.

Appellants make three points as regards the propriety of the adjudication of the lien in favor of plaintiff, Jesse Reese, and three as regards the sufficiency of the evidence to have warranted the judgment which was rendered for respondent American Furnace Company.

As to plaintiff, they first argue that he was not entitled to a lien because the S. & H. Realty Company, the record owner of the property at the time plaintiff's contract was executed and the work begun, was not made a party to the suit. There having been no privity of contract between plaintiff and the S. & H. Realty Company, and the latter having conveyed all its interest in the property long prior to the institution of this suit, we do not perceive what interest might now be claimed for such company so as to have made it a necessary party in a suit for the adjudication and enforcement of plaintiff's lien. Edward McLundie & Co. v. Mount, 145 Mo. App. 660, 123 S. W. 966.

Indeed, plaintiff's consistent theory has been throughout the case that defendant Herman Hoyer, at all times prior to the acquisition of title by appellants, was the actual owner of the property, regardless of in whose name the bare legal title may have been. In fact, from June 13,...