Rust Sash & Door Co. v. Bryant

• Decision Date: 09 January 1939
• Docket Number: No. 19303.,19303.
• Citation: 124 S.W.2d 544
• Parties: RUST SASH & DOOR CO. v. BRYANT et al.
• Court: Missouri Court of Appeals

124 S.W.2d 544

RUST SASH & DOOR CO. v. BRYANT et al.

No. 19303.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Rehearing Denied January 30, 1939.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Mechanic's lien proceeding by the Rust Sash & Door Company against the Gate City Building Corporation and others, wherein T. D. Bryant intervened. From an adverse judgment, the intervener appealed to the Supreme Court, 114 S.W.2d 1023, which transferred the cause to the Kansas City Court of Appeals.

Affirmed.

Glenn R. Donaldson, of Kansas City, for appellant.

George K. Brasher and Wright, Rogers & Margolin, all of Kansas City, for respondents.

BLAND, Judge.

This is an appeal, by a mechanic's lien claimant, from a decree disallowing his lien. The appeal was lodged in the Supreme Court, but that court held it had no jurisdiction and transferred the cause here. See Rust Sash & Door Company v. Gate City Building Corp., et al., 114 S.W. 2d 1023, 1024.

In its opinion, holding that it had no jurisdiction of the appeal, the Supreme Court made a statement of facts, which we adopt and make some additions thereto. The statement by the Supreme Court reads as follows:

"This is a mechanic's lien cause under section 3180 et seq., R.S.1929, Mo.St.Ann. § 3180 et seq., p. 5008 et seq. Plaintiff and 15 other mechanic's lien claimants were each given a lien on the property described, and in the amount of each respective claim, but appellant, T. D. Bryant (generally referred to hereinafter as Bryant), was given only a personal judgment against the trustees of the owner (see infra), and was denied a mechanic's lien `for the reason (as stated in the judgment of the court) that the mechanic's lien statement of said T. D. Bryant is not a just and true account of the demand due him and is insufficient to support a mechanic's lien and for that reason he has failed to take the steps required by law to establish the same.'

"Bryant filed a motion for a new trial which was overruled and he appealed, but he filed no bill of exceptions, hence there is nothing here except the record proper. And it is contended that appellant has not brought up the entire record proper, and has attempted to bring up matters of exception when there was no bill of exceptions filed. Plaintiff and other respondents have filed here a motion to dismiss the appeal, which motion was taken with the case.

"Bryant did not set out in his abstract the judgment in full, but a certified copy of the complete judgment sent up by the clerk of the trial court is before us. From this, and appellant Bryant's answer or intervening petition, the following facts appear: On or prior to April 4, 1930, the owner of the property, the Gate City Building Corporation, commenced the erection of a new 11-story hotel and apartment building on lots (in Kansas City) upon which, including the unfinished building, the mechanics' liens were sought and obtained, except as to Bryant. The name of the new building was to be Clyde Manor Apartments and the construction continued until abandoned by the owner in the latter part of January, 1931. On June 16, 1930, the owner executed a deed of trust on the property to the Metropolitan Bank & Trust Company and J. Kenneth Edlin, trustees (who were defendants), to secure bonds, payable to bearer, in the sum of $650,000, and the coupons. (The holders of the bonds were designated as unknown defendants and served by publication.) July 10, 1930, Bryant and the owner entered into a contract whereby Bryant was to do certain concrete work (furnishing material and labor) on the building.

"It appears on Bryant's mechanic's lien account that it was filed in the office of the clerk of the circuit court on February 18, 1931, but it is contended that this account (required to be filed by section 3161, R.S. 1929, Mo.St.Ann. § 3161, p. 4986) is not before us, because not a part of the record proper. However, there is no claim that this filing (if the account can be considered) was not in due time. Neither is there any claim that Bryant did not file his intervening petition in due time.

"The court found as to Bryant that the `Gate City Building Corporation, at the time alleged in the answer and cross petition of defendant T. D. Bryant, contracted with him as alleged in his separate pleading herein, for the performance of work and labor upon and for the purchase of materials for use in the erection and construction of such improvements upon said real estate; that said T. D. Bryant performed his contract, as far as could be done, until said Gate City Building Corporation stopped further work on said building, and a portion of the materials and work and labor for which he claims a mechanic's lien herein was actually furnished and used and done and performed upon said real estate in the erection and construction of said improvements, and although the said T. D. Bryant is entitled to a personal judgment as prayed for in his separate answer and cross petition, he is not entitled to a mechanic's lien herein, and is removed and excluded from the classification of mechanic's lien claiming defendants as the term is used herein,' for the reason as above stated.

"The court further found that there was `due and owing' Bryant $14,527.87, which, plus interest, amounted to $18,288.17, and that this sum was due from defendants Alfred G. Saenger et al., trustees, formerly the president and board of directors of the Gate City Building Corporation, which was dissolved as a corporation January 1, 1932. Bryant's account filed with the clerk February 18, 1931, is a kind of summary, not in detail. It shows a balance due Bryant, not including interest, of $14,527.87. Bryant designated the balance due as `Due and lienable amount.' There was indorsed on the account at its end, this: `Approved January 15, 1931, Gate City Building Corp., W. D. Snyder, Agent.' And from the recitals in the judgment, there was no question on Snyder's authority to approve the account. Also, it was found in the judgment that `under and pursuant to the terms of said deed of trust (to Metropolitan Bank & Trust Co. and Edlin, to secure the bonds) the defendant Gate City Building Corporation became and acted as the agent of and for the trustees named in said deed of trust and the owners and holders of the bonds and other parties secured thereby in connection with the erection and construction of such improvements upon said real estate.'"

It might be further stated that the character of the contract entered into between Bryant and the Gate City Building Corporation was "to complete concrete frame work" of the building for a lump sum of $75,000. It appears that the plaintiff and 15 other lien claimants were granted claims amounting to about $48,000 and that the Chancellor, in deciding that the appellant was entitled to a money judgment, expressly found "that all other issues herein should be found against said T. D. Bryant and that he is not entitled to have his claim for a mechanic's lien herein sustained." In this court it is claimed by respondents that there is nothing before us to show that the filing of the mechanic's lien account was in due time.

The cross-bill of appellant describes the mechanic's lien statement and its filing in apt terms. It also sets forth the items of the account, which included certain items alleged, in the cross-bill, to be for extra work. It states that the account was shown by an itemized statement attached to the cross-bill, "marked Exhibit A and made a part hereof."

The court, in its decree found, among other things, that the building corporation and its trustees had made default in not appearing in the cause or filing any pleading therein.

It appears that there has been filed, in this court, a motion to dismiss the appeal or affirm the judgment.

The appellant has filed a motion to discharge all respondents in the case, except the original owner of the premises and the bondholders under the deed of trust, on the ground that, after the appeal reached this court a sale was had foreclosing the mechanics' liens of the 16 parties to the action whose liens were allowed and, consequently, the said respondents have no further interest in the litigation.

It would appear that the appeal was taken without supersedeas which has resulted in the sale aforesaid. The motion must be overruled for the reason that, if the cause were reversed, the said 16 respondents would be obligated to make restitution to appellant. It is apparent that any restitution would be at the expense of these respondents, because the amount of their decrees, or of their respective interests in the proceeds of the sale, would be reduced to the extent that appellant's claim would be allowed. Berry v. Equitable Fire & Marine Ins. Co., 317 Mo. 1119, 298 S.W. 63; Shields v. Powers, 29 Mo. 315, 317; Jones v. Hart, 60 Mo. 362, 364, 365; Hurst Automatic Switch etc. v. Trust Co. of St. Louis, 291 Mo. 54, 236 S.W. 58; Aetna Ins. Co. v. Hyde, 327 Mo. 115, 34 S.W.2d 85. The motion is overruled.

In this connection we may say that appellant's contention that said respondents have no interest in this appeal, regardless of whether there had been any foreclosure sale prior to the determination of the appeal and the final determination of the case, is without merit.

Plaintiff contends that the Chancellor, having found that the apartment was constructed in accordance with the plans, specification and contract, as far as could be done, to the point where the owner stopped the work and, having further found that the sum asked for in appellant's lien claim and in his cross-bill, was due; that the account was approved by the agent of the building company and thereby became an "account stated" and that the Chancellor, having given a personal judgment for the amount with interest, he erred in not allowing appellant's claim as a lien. It is further insisted by the appellant th...