Reese v. Hoyer
| Decision Date | 07 July 1936 |
| Docket Number | 24015 |
| Citation | 95 S.W.2d 884 |
| Parties | JESSIE REESE, Plaintiff, v. HERMAN HOYER, and NORA K. HOYER, His Wife, and HOWARD A. BLAIR, and AGNES BLAIR, His Wife, and J. RENWICK BLAIR, (Defendants) Respondents, AMERICAN FURNACE COMPANY, a Corporation, (Defendant) Appellant, LEO J. QUINN, and LARS CHRISTOFFERSON, doing business as Brentwood Fuel and Material Co., and GILBERT E. LANCASTER, as etc., and the unknown owner or owner of the negotiable promissory notes described in and secured by the deed of trust executed by Howard A. Blair and Agnes W. Blair, his wife, and J. Renwick Blair, dated November 5, 1929, and recorded on the 15th day of November, 1929, in book 1051, page 130, of the records of the office of the Recorder of Deeds of St. Louis County, Mo., said unknown owner or owner of said notes being the unknown consort or consorts, heirs, devisees, donees, alienees, immediate, mesne or remote, voluntary or involuntary grantees of said Leo J. Quinn and Herman Hoyer, Defendants |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County. Hon. Fred Mueller Judge.
OPINION
Walter E. Bennick, COMMISSIONER.
This is an equitable mechanic's lien suit in which the appeal is by defendant, American Furnace Company, from the Judgment of the circuit court denying its lien.
The lien claimed was for the fair and reasonable value of certain materials and labor alleged to have been furnished by appellant under contract with one Gilbert K. Lancaster, doing business as Lancaster Furnace Company, who had himself theretofore contracted with one Herman Hoyer, the owner of the land at the time the construction was begun, for the installation of a furnace and the appurtenances thereto in the building to be erected.
The several items of its account were alleged to have been furnished by appellant between October 4, 1929, and October 28, 1929. On October 31, 1989, Hoyer, by warranty deed executed by himself and his wife, conveyed the property to defendants Howard A. Blair, Agnes Blair, his wife, and J Renwick Blair, who were still the owners of the property at the time of the trial below.
This appeal, of course, does not involve the interests of any of the other of the numerous original parties to the suit.
It appears that on October 29, 1928, Hoyer entered into a contract with Lancaster for the installation of the furnace in question for the consideration of $ 263.50, of which the sum of $ 40 was to be paid when the house was "roughed in", and the balance upon the completion of the house.
Lancaster thereupon sought to purchase the furnace from appellant, the manufacturer of the same, which, however, refused to extend further credit to him because of the state of his account with it. The established price of the furnace and its accessories was $ 183.50. Lancaster thereupon suggested an arrangement by which he would induce foyer to execute his note to appellant for the full amount to be due Lancaster from Hoyer, said entire amount, when paid, to be applied by appellant to the reduction of Lancaster's account. However the note itself was not accepted by appellant in payment of the furnace supplied Lancaster, but it continued thenceforth to look, though unavailingly, to Lancaster for the payment of the agreed price. In fact appellant surrendered the not unpaid at the hearing as is shown by reference to that fact in the report of the referee who was appointed by the lower court to try the issues in the case.
The note in question was executed by Hoyer on December 10, 1929 the same being drawn in favor of appellant for the sum of $ 223.50, and made to mature two months after date, and to bear interest at the rate of 6% per annum from and after its maturity.
Apparently the sum of $ 223.50, which was made to be the face value of the note, was the balance due Lancaster from Hoyer at the time of the execution of the note, the sum of $ 40 out of the original contract price having been theretofore paid Lancaster by foyer Presumably when the house was "roughed in".
So we have, a situation where appellant took and held Hoyer's note for $ 223.50 as security for the payment of Lancaster's debt of $ 183.50 to appellant, the balance of $ 40, if and when the note was paid, to be applied towards the reduction of Lancaster's running account with appellant.
The materials ordered by Lancaster from appellant were furnished by the latter, and the furnace was wholly installed by Lancaster. No part of the purchase price was ever paid appellant either by Lancaster or by Hoyer, and in due time appellant filed its lien, the items of its lien account being listed and enumerated as follows:
Appellant's cress bill or cross petition was in the conventional form for a case of this character, alleging, among other things, that the several items of appellant's account constituted items furnished by appellant at the special instance and request of and under contract with Lancaster for use in the construction of the improvement in question; that nothing had been paid on the account; that Lancaster was not entitled to any credits; that the total amount of $ 223.50 was still due and owing to appellant from Lancaster; and that the lien theretofore filed by appellant "contained a true account of the demand due it".
Appellant prayed judgment against Lancaster in the sum of $ 223.50, with interest thereon from the date of demand, and further prayed that the same might be adjudged to be a lien against the property.
Respondents Hoyer and Blair answered, denying, among other things, that appellant had installed the furnace in the premises, and alleging that the lien was fraudulent because of the inclusion of the item of $ 40 for labor not...
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