Rogers Foundry Company, a Corp. v. Squires

• Decision Date: 06 July 1927
• Citation: 297 S.W. 470,221 Mo.App. 17
• Parties: ROGERS FOUNDRY COMPANY, A CORPORATION, RESPONDENT, v. WILBUR N. SQUIRES ET AL., RESPONDENTS, CLEAR-PEACHER MINING COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

297 S.W. 470

221 Mo.App. 17

ROGERS FOUNDRY COMPANY, A CORPORATION, RESPONDENT, v. WILBUR N. SQUIRES ET AL., RESPONDENTS,

CLEAR-PEACHER MINING COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri

July 6, 1927

Appeal from the Circuit Court of Jasper County.--Hon. S.W. Bates Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

John J Wolfe for appellant.

(1) The materials set forth in the several claims and accounts sued on herein were not furnished "under or by virtue of contract with the owner or proprietor thereof," etc., as contemplated by sections 7216 and 7220, Revised Statutes 1919, and claimants (respondents herein), were not entitled under the pleadings and the evidence to have their claims established as prior specific liens against the property and chattels set forth in the judgment as the property and chattels of Clear-Peacher Mining Company. Ward v Nolde, 259 Mo. 285, 168 S.W. 596; Carroll Contracting Co. v. Newsome, 210 S.W. 114; Ford v. Dixon et al., 171 Mo.App. 275; 157 S.W. 99; Ottumwa Iron Wks. v. Muir, 126 Mo.App. 582; Foundry & Mach. Wks. v. Cole, 130 Mo. 1-8; Iron Wks. v. Iron Wks., 143 Mo.App. 1-6; Landreth Machy. Co. v. Roney, 171 S.W. 681; Weeks-Betts Hdw. Co. v. Roosevelt Lead & Zinc Co., 153 Mo.App. 386; Richardson v. Koch, 81 Mo. 264; O'Brien v. Hydock, 59 Mo.App. 653; Carroll v. Shooting the Chutes, 85 Mo.App. 563; Meistrel & Co. v. Beach, 56 Mo. 243; Press Brick & Mach. Co. v. Brick Co., 151 Mo. 501. (2) Respondents were not entitled to have their judgments against Squires established as prior liens against the property and chattels placed on the Clear-Peacher Mining Company's premises by said Squires, as its licensee, and on May 8, 1925, assigned by him to Clear-Peacher Mining Company to secure payment of rent and royalty owed by Squires in the sum of $ 2500. Under the terms of the Mechanic's Lien Statute the Clear-Peacher Mining Company was entitled to have its back rent and royalty paid out of this property first. R. S. 1919, sec. 7220. (3) Respondents herein are restricted in any case to property described in the lien statements filed by them. That description is specific and excludes any lien for improvements not embraced within its terms, and they cannot establish a lien against property broader than that described in the statements of their lien claims filed. R. S. 1919, sec. 7221; Krah v. Weidlich, 55 Mo.App. 536; Boland v. Webster, 126 Mo.App. 591. (4) Respondent McNeal Machinery Company did not furnish certain articles of machinery described in its lien account to-wit: One O. H. hoister, one Gardner steam pump, one jack hammer, one second-hand Samson hoist, one Freeman hoister, one Atlas Steam Engine, relying on the statutory lien, but took back notes and chattel mortgages for security thereon, thus commingling numerous such non-lienable articles and other non-lienable items, such as scoop shovels, poll picks, monkey wrenches, cans of carbide wheelbarrows, belt dressing, hammers, hammer handles, etc., which were plainly non-lienable in their account thus rendering said account wholly inadequate as a "just and true statement of second" required by our Missouri Lien statute. Schulenburg v. Robinson, 5 Mo.App. 561; Reitz v. Ghio, 47 Mo.App. 287; Uthoff v. Gerhard, 42 Mo.App. 256. (5) As a matter of law the appellant Clear-Peacher Mining Company was entitled to a judgment in its favor on the question of the special lien prayed for by the respondents herein, both as touching the premises and property, mill buildings, machinery and equipment comprising the mining plant described in the plaintiff's petition, and also as touching the several articles and chattels mentioned in the judgment and found by the court to have been placed upon said land by said Squires.

Mercer Arnold, Grayston & Grayston and R. A. Pearson for respondents.

Respondents furnished materials to a licensee or lessee in possession of leased premises, and, their contracts being made with the owner of the license or lease, their claims are a proper basis for a lien. R. S. 1919, sec. 7220. Appellants sought to establish absolute title to the property in question in the court below. They cannot now for the first time set up a claim for unpaid royalties or rent and ask for a money judgment. Sec. 1512, R. S. 1919; Wrather v. Lawson, 247 S.W. 473, 474-5; McMurtrey v. Kopke, 250 S.W. 399, 401; Baker v. J. W. McMurry Construction Co., 223 S.W. 45, 52, 282 Mo. 685, 707; Bank of Hillsboro v. Bowen, 196 S.W. 1026, 1028; Banaka v. Mo. P. Ry. Co., 186 S.W. 7, 8, 193 Mo.App. 345, 348; Ostrander v. Messmer, 289 S.W. 609; Quints v. Kinsbury, 289 S.W. 667. The assignment of Squires to appellants, purporting to be an absolute conveyance, contained a defeasance clause, and was in fact an equitable mortgage, given to secure the payment of a debt, to-wit, unpaid royalties. 5 Ruling Case Law, pages 388-9, section 8; Forester v. Moore, 77 Mo. 651, 661. The assignment of Squires to appellants, being in effect, a chattel mortgage, and being executed, delivered and recorded subsequent to the date when each of respondents' liens attached, is inferior to respondents' liens. R. S. 1919, sec. 7223. The evidence fails to show that any of the royalties claimed to be due from Squires to appellant accrued and were due prior to the time respondents' liens attached. If such royalties accrued and were due after such liens attached, then the claim for such royalties is a subsequent encumbrance within the meaning of the statute, if the appellant has in fact a lien. The various sections of the lien statute should be construed so as to harmonize, if possible. R. S. 1919, secs. 7220, 7223. The provision as to payment of rent in the statute applies only where the lienor seeks to hold the lease or where the lessor has regained possession of the leased premises before the time the first materials were furnished, and furthermore, such provision was enacted for the benefit of the owner of the ground and not for the benefit of the owner or lessee under a first lease. R. S. 1919, sec. 7220. Respondent McNeal Machinery Company did not lose its right to a lien by taking mortgages upon part of the goods sold by it to defendant Squires, because the notes and mortgages were given, accepted and credited as actual cash payments upon the lien account, and the property upon which the mortgages were given is not included in the account upon which the court based its judgment. Machinery Co. v. Roney, 185 Mo.App. 474, 171 S.W. 681.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This is an action under the statute, section 7220, Revised Statutes 1919, to establish a lien for material furnished. From the judgment rendered the Clear-Peacher Mining Company appealed. After the petition was filed other lien claimants intervened and filed pleadings so that when the cause went to trial three lien claims were involved. D. M. Page et al. owned the fee in a certain described forty acres of mining land in Jasper county. The Clear-Peacher Mining Company, a copartnership composed of Fletcher Clear, Roy Peacher and Charles M. Rountree, held a mining lease on this land, which lease expired in 1933. August 28, 1924, the Clear-Peacher Mining Company entered into a license contract with Wilbur N. Squires, as a trustee for others, whereby Squires was to enter upon the land and perform certain mining operations thereon, and upon the completion of the work required, Squires was to have an option, for a time specified, to lease the land from the Clear-Peacher Mining Company for the remainder of their term. At the time of the license contract the Clear-Peacher Mining Company had a mining plant and considerable property upon the land. Under the license contract Squires entered upon the land and proceeded with the operations required of him. While proceeding under this contract Squires, trading as the S. & M. Mining Company, purchased the materials for which the different liens are sought. During the time Squires operated the plant he placed on the premises, using therefor the materials for which liens are claimed the following: One hopper and derrick east of mill including hoister, a tramway, a hoister in derrick west of mill, one forty-four by one fifty-six revolving screen, two large lift pumps, sludge tables, twelve tubs, oil burning system in engine room, one four-inch steam pump with belts and fittings, one new jack hammer, a forty by thirty-six rougher jig and a forty by thirty-two cleaner jig with irons complete, one sand jig, one dummy elevator including belts, cables and lumber, one two-inch pump in engine room.

Judgment was rendered in favor of plaintiff and against Squires as trustee and individually for $ 452.80 and this amount was adjudged a lien upon the above-mentioned property. Judgment was given also in favor of the McNeal Machinery Company and against Squires as trustee and individually for $ 1594.25, and this judgment, to the amount of $ 1220.93, was declared a lien upon the same property. Also judgment was awarded in favor of the Joplin Cement Company and against Squires as trustee and individually for $ 46.40, and this judgment was declared a lien upon the same property. Neither of the liens adjudged was given preference as to priority, but all were adjudged equal in that respect. It was ordered that the property, upon which the liens were adjudged, be sold and the proceeds distributed (1) to the payment of costs; (2) to the payment of liens pro rata; (3) and the balance, if any, to the Clear-Peacher Mining Company.

Fletcher Clear, individually, George W. Moore and Frank Sharp were discharged and judgment given in their favor. It was also found that Fletcher Clear had no connection with the S. & M Mining Company, hence it will...