Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co.

• Decision Date: 04 November 1942
• Docket Number: No. 26008.,26008.
• Citation: 165 S.W.2d 437
• Parties: ROY F. STAMM ELECTRIC CO. v. HAMILTON-BROWN SHOE CO. et al.
• Court: Missouri Court of Appeals

165 S.W.2d 437

ROY F. STAMM ELECTRIC CO. v. HAMILTON-BROWN SHOE CO. et al.

No. 26008.

St. Louis Court of Appeals. Missouri.

November 4, 1942.

Appeal from Circuit Court, City of St. Louis; William K. Koerner, Judge.

"Not to be reported in State Reports."

Action by the Roy F. Stamm Electric Company against the Hamilton-Brown Shoe Company, its trustees, and its trustee in bankruptcy, to recover the amount due for labor and materials furnished in performance of a contract for installation of lights in buildings owned by defendant corporation and to establish and enforce a mechanic's lien therefor. Judgment for defendants, and plaintiff appeals.

Reversed and remanded, and cause certified and transferred to the Supreme Court for final hearing and determination.

John C. Kappel, Jr., and Walter S. Berkman, both of St. Louis, for appellant.

Jones, Hocker, Gladney & Grand and Harry S. Gleick, all of St. Louis (Gleick & Strauss, of St. Louis, of counsel), for respondents.

BENNICK, Commissioner.

This is a mechanic's lien suit which was brought by Roy F. Stamm Electric Company on account of labor and materials furnished in the performance of a contract for the installation of lights in two connected buildings owned by Hamilton-Brown Shoe Company, and located upon allegedly contiguous lots in the City of St. Louis. The prayer was that plaintiff recover judgment for the sum of $3,219.58, the amount of the indebtedness, together with interest and costs of suit, and that such judgment be declared and adjudged to be a lien upon the buildings and the lots or lands upon which the same are situated.

The lots in question, which are three in number, are all located in the western portion of a single city block, which is bounded by Twentieth Street on the east, Twenty-first Street on the west, Olive Street on the south, and Locust Street on the north. The one building is a seven-story and basement brick commercial building which covers one entire lot and a portion of a second lot, and stands at the northeast corner of Twenty-first and Olive Streets. The other building is a seven-story and basement brick factory building which covers a single lot approximately twice the area of the other two, and stands at the southeast corner of Twenty-first and Locust Streets. In other words, the Locust Street building is located immediately to the north of the Olive Street building, being separated only by an alley nineteen feet four inches in width which runs east and west between Twentieth and Twenty-first Streets, and which, at the time the block was platted in 1859, was laid out and dedicated to public use forever.

But while the buildings are separated by the alley running east and west between them, they have nevertheless been long since joined together and connected by two overhead enclosed passageways or bridges through which run wires, pipes, conduits, and chutes, and which, in fact, were constructed for the express purpose of having means available for the transfer of men and materials back and forth between the two buildings. In addition, there are similar pipes, conduits, and other connections which run underneath the surface of the alley between the two buildings, all designed to convert the two buildings into a single industrial unit so that the two buildings may be used in connection with each other for every necessary purpose.

The work which plaintiff did, and for which it seeks a single lien on all the properties, was performed in both buildings and also in the two overhead passageways through which plaintiff installed wires which led from the main switch box in the Olive Street building to all the lights and signals in the Locust Street building. There was no dispute about the fact that all the work was done under one general contract; that the lien account was just and true, and the charges reasonable; that the description of the lots was correct; and that the lien and suit were both filed within the times prescribed by statute.

Shortly following the completion of the work, the Hamilton-Brown Shoe Company instituted a proceeding for reorganization in the United States District Court for the Eastern Division of the Eastern Judicial District of Missouri; and thereafter the district court entered an order authorizing and permitting plaintiff to bring and maintain this proceeding in the state court.

Issue was joined in the circuit court between plaintiff as lienor and the trustee in bankruptcy of Hamilton-Brown Shoe Company.

With plaintiff claiming the right to a single lien upon all the properties upon which materials were furnished and labor was performed, the prime issue in the circuit court (just as is true in this court) was whether the lots in question were "contiguous" within the meaning and contemplation of Section 3579, R.S.Mo.1939, Mo.R.S.A. § 3579, which provides as follows:

"When the improvement consists of two or more buildings, united together and situated upon the same lot or contiguous lots, or separate buildings upon contiguous lots, or a continuous or connected sidewalk in front or alongside of contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building or lot for the work done or materials furnished in the erection of such improvements."

The court found that the estate of Hamilton-Brown Shoe Company in bankruptcy was indebted to plaintiff in the sum of $3,219.58 with interest, aggregating the sum of $3,622.03, but held that it had no jurisdiction to enter a general judgment against either the estate of the bankrupt or the trustee in bankruptcy for the amount of such indebtedness or any part thereof.

As for the lien, the court found that because of the public alley running between and separating the lots of land described in the petition, the same were not contiguous within the meaning of Section 3579, supra, and then held that inasmuch as the lien filed by plaintiff had been filed against noncontiguous lots, plaintiff was not entitled to a lien on the property described in its petition, or any part thereof, to secure the payment of all or any portion of the amount found to be due it on its lien account.

From the judgment thus entered in favor of defendants, plaintiff's appeal to this court has followed in the usual course.

Although there is an incidental question in the case of the court's power and authority to enter a general judgment against the bankrupt owner of the properties for the amount of the indebtedness found to be due and owing to plaintiff, the matter in actual controversy between the parties is the question of whether the lower court ruled properly in denying a lien upon the theory that the lots were not contiguous within the meaning of Section 3579. If they are not contiguous within the meaning of the statute, then the court was of course correct in denying the single lien which plaintiff sought. But on the other hand, if the lots may properly be said to be contiguous within the meaning of the statute notwithstanding the existence of the public alley which separates the buildings, then plaintiff was entitled to its lien upon all the properties described in the petition.

While the word "contiguous" is a relative term and may have a variety of meanings depending upon the sense in which it is used (17 C.J.S., page 178; 9 Words and Phrases, Perm.Ed., page 90), we have no doubt that in the statute now under consideration it has been used in its primary sense as implying actual contact or connection. For the statute to have application, mere close proximity is consequently not enough, but on the contrary, there must be an actual joining or touching of the lots in order for them to be contiguous. Such is the usual and ordinary meaning of the term; and a different meaning should therefore not be attributed to it unless the context in which it appears, the nature of the subject under consideration, and the ultimate purpose to be served should all indicate (which they do not) that it was purposely employed in the particular instance as connoting mere nearness or adjacency without the necessity for actual contact.

The question in the instant case therefore resolves itself into one of whether the existence of the public alley which runs between the buildings constitutes such a separation of the lots as to prevent them from being contiguous, that is, from having actual contact, within the sense and meaning of the statute.

In two cases where the precise question was raised, the Kansas City Court of Appeals has held that...