Sawyer And Austin Lumber Company v. Clark

• Decision Date: 17 March 1903
• Citation: 73 S.W. 137,172 Mo. 588
• Parties: SAWYER and AUSTIN LUMBER COMPANY, Appellant, v. CLARK et al
• Court: Missouri Supreme Court

73 S.W. 137

172 Mo. 588

SAWYER and AUSTIN LUMBER COMPANY, Appellant, v. CLARK et al

Supreme Court of Missouri, Second Division

March 17, 1903

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

Robert L. McLaran and Jared W. Young for appellant.

(1) Clark was an owner within the purview of the statutes relating to mechanics' liens, and, as such, could subject the property to a lien. Judd v. Duncan, 9 Mo.App 417; O'Leary v. Rowe, 45 Mo.App. 567; Kline v. Perry, 51 Mo.App. 422; Meyer v. Christian, 64 Mo.App. 203. (2) Plaintiff's description of the lot was sufficiently accurate, and the partially incorrect description by metes and bounds in the petition may be rejected as surplusage on the maxim "Falsa demonstratio non nocet." Brick and Machine Company v. Brick and Quarry Company, 151 Mo. 501, 52 S.W. 401; Rall v McCrary, 45 Mo.App. 365; DeWitt v. Smith, 63 Mo. 263; Cahill v. Orphan School, 63 Mo.App. 28; Bambrick v. King, 59 Mo.App. 284. (3) The error in credits in the lien account was merely a clerical one and self-explanatory.

Lyon & Swarts for respondents.

(1) The materials furnished by the appellant to defendant Clark were not furnished under a contract with the owner or proprietor of the land upon which the building was erected, nor with a lessee or mortgagor, and therefore appellant was not entitled to a lien on the building separately from the land. Planing Mill Co. v. Christophel, 60 Mo.App. 106; State to use v. Hailey, 71 Mo.App. 200. (2) The description of the land, both in the lien account and in the petition, is fatally defective, for the following reasons: That the building is therein located solely on lot 19, in city block 3732, when in fact it is located partly on lot 19 and partly on lot 18, as shown by the evidence in behalf of the appellant; that in the petition the land is located on the south side of Evans avenue, when in fact it is located on the north side of Evans avenue, as shown by the evidence in behalf of the appellant; and that the descriptions of the land, as contained in the lien account and the petition, when taken together, are so uncertain, vague and contradictory as to render the description totally insufficient and fatally defective. Lemly v. LaGrange Iron & Steel Co., 65 Mo. 545; Mechanics' Planing Mill Co. v. Nast, 7 Mo.App. 147. (3) The items of the lien account, as filed by appellant, are conclusive against appellant. Coe v. Ritter, 86 Mo. 277. (4) Appellant was not entitled to a lien, because it failed to show, and there is no evidence whatever to show, how much of the lumber went into that part of the building on lot 19, which was the only lot referred to in the lien account and petition, or how much of the lumber went into that part of the building on lot 18. Fitzpatrick v. Thomas, 61 Mo. 512; Barnett's Executrix v. Murray, 62 Mo.App. 500; Miller v. Hoffman, 26 Mo.App. 199.

OPINION

GANTT, P. J.

On February 18, 1898, S. J. Fisher contracted to sell to C. M. Clark a lot on the north side of Evans avenue in St. Louis city, with a frontage of twenty-six feet and nine and one-half inches and a depth of one hundred and sixty-five feet. The lot was made up of twenty-five feet of the eastern portion of lot 19 and one foot nine and one-half inches off of the western portion of lot 18 of city block 3732. Fifty dollars cash was paid on account of said purchase, and the balance of the purchase money was agreed to be paid forty days thereafter. There was evidence tending to show that the purchaser was allowed sixty days additional time to make this deferred payment. Plaintiff under a contract with the purchaser, furnished lumber for the erection of a building on said lot and brought this action to establish a mechanic's lien upon said building and the land upon which it stood. The improvement consisted of a two-story brick building arranged as flats, which was twenty-six feet wide. It stood seven and one-half inches west of the eastern line, and two inches east of the western line of the lot, which Fisher agreed to convey to Clark. The evidence tended to show that the lumber for whose price the suit was begun, entered into the construction of said building, and was furnished for that purpose between the sixth or eighth day of March and the second day of April, 1898. The lien account correctly stated the dimensions of the lot which was the subject of the contract between Fisher and Clark, but referred to it as part of lot 19 of city block 3732, when in point of fact it was composed and made up of the contiguous portions of lots 19 and 18 in the proportions specified in the contract between Fisher and Clark. After the introduction of the lien account, plaintiff moved the court to permit an amendment of the petition, so as to conform its description of the property to the description given in the lien account, which plaintiff insisted could be done by merely striking out the specific boundary mentioned in the petition, which erroneously showed that the south instead of the north line of Evans avenue, was the beginning point of the lot. The court overruled this motion, to which exception was duly saved. Thereupon plaintiff disclaimed any right to subject the land on which the building was situated to a mechanic's lien, the proof showing that up to the time of the trial, Clark, the purchaser, had not paid the balance of the purchase money, nor acquired title to the land further than resulted from his contract with Fisher, the owner, but plaintiff insisted that it was still entitled to a lien against the building. The evidence showed that Clark was in possession of the lot, under his contract to purchase it, during the whole time of the accrual of plaintiff's account and until the erection and completion of the building on said lot.

The cause was submitted to the court without a jury. Plaintiff requested the court to give the following declarations of law:

"1. The court declares the law to be that if the court believes from the evidence that defendant Clark was in possession of the land under and by virtue of a contract to purchase the same from defendant Fisher, the owner, and while in possession thereof, began the erection of a building thereon, then said Clark had an interest in said land as owner within the purview of the Missouri statutes and could subject said building and his interest in the land to a mechanic's lien.

"2. The court further declares the law to be, that if the court believes from the evidence that plaintiff furnished material upon the building erected by said Clark on the land described in the plaintiff's lien and petition, and under a contract with said Clark, and that said material entered into and became a part of said building, and that thereafter plaintiff complied with all the statutory requirements for establishing a mechanic's lien, then plaintiff is entitled to such a lien on said building.

"3. The court declares the law to be, that if the court believes from the evidence that defendant Fisher, being the owner of lots 18 and 19 in block 11 of Evans Place in city block 3732 of the city of St. Louis, entered into a contract of sale with defendant Clark whereby he agreed to sell to him the eastern twenty-five feet of said lot 19 and the western one foot nine and one-half inches of lot 18, and in pursuance of said agreement said Clark entered upon and took possession of said piece of land and began the erection of improvements thereon, then said lot of land is one complete and entire lot as regards defendants Fisher and Clark and all those claiming through or under them.

"4. The court declares the law to be that although the court may find from the evidence that the building erected on the lot of land in question is situated on contiguous lots owned by defendant Fisher, plaintiff is nevertheless entitled to a mechanic's lien on the building situated thereon, if the lien papers are otherwise good."

The court refused all of the foregoing declarations, and at the instance of defendant declared against the right of plaintiff to recover a lien, and accordingly gave judgment for defendant, from which plaintiff has appealed to this court.

This appeal has been transferred to this court by the St. Louis Court of Appeals, owing to the fact that one of the judges of that court deemed it in conflict with prior decisions both of that court and of this court.

The opinion of the majority, by Judge Bond, is as follows:

"Respondents insist that there are such imperfections in the description of the property in the petition and lien as to justify the ruling of the court. The allegation in the petition that the beginning point in the boundary of the lot was on the south line of Evans avenue, is shown to have been a mere error in the use of that term when the term north was meant by a notation of the subsequent courses and distances completing the description of the lot. These showed that starting from the beginning point the course was north one hundred and sixty-five feet ten inches thence east twenty-six feet nine and one-half inches, south one hundred and sixty-five feet ten inches, thence west to the beginning. This description would take in the width of the street as the southern frontage and a portion of the lot which would be a patent error, since the vendor could not convey a public street. As this could not have been intended and as the course of the measurements located the land on the north side of the street, it is demonstrable that the pleader intended to allege that the beginning point was on the north line of the street, and that by inadvertence or clerical...