Schroeter Bros. Hardware Co. v. Croatian Sokol'' Gymnastic Ass'n

• Citation: 58 S.W.2d 995,332 Mo. 440
• Decision Date: 16 March 1933
• Docket Number: 30782
• Parties: Schroeter Brothers Hardware Company, a Corporation, v. Croatian "Sokol" Gymnastic Association, a Corporation, Appellant, and George Moeller
• Court: United States State Supreme Court of Missouri

58 S.W.2d 995

332 Mo. 440

Schroeter Brothers Hardware Company, a Corporation, v. Croatian "Sokol" Gymnastic Association, a Corporation, Appellant, and George Moeller

No. 30782

Supreme Court of Missouri

March 16, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Reversed and remanded (with directions).

Conrad Paeben and Jeffries, Simpson & Plummer for appellant.

(1) The Duchon deed of trust was given for part purchase money and was entitled to priority over said mechanic's liens. Birdwell v. Clark, 39 Mo. 170; Russell v Grant, 122 Mo. 161; Wilson v. Lubke, 176 Mo 210. (2) The deed of trust of February 20, 1926, was prior in date and recordation to the contracts with the mechanic's lien claimants and to the commencement of their work, and, in addition, money had been advanced thereon prior to such contracts and work. It was entitled to priority as to the land covered thereby. Secs. 3158, 3159, R. S. 1929; Crandal v. Cooper, 62 Mo. 478; Gold Lumber Co v. Baker, 36 S.W.2d 130; United Iron Works v. Mining & Development Co., 198 Mo.App. 562; McAdow v. Sturtevant, 41 Mo.App. 220; Dugan v. Scott, 37 Mo.App. 663. (3) Since neither of the mechanic's lien claimants was a general contractor for the erection of the completed improvements upon the land, and since certain of the improvements thereon existed when said deed of trust was executed and recorded, and since respondents' contracts were of date subsequent to said deed of trust of February 20, 1926, the said deed of trust was entitled to priority over said liens as to the improvements. May v. Mode, 142 Mo.App. 673; Stumbaugh v. Hall, 30 S.W.2d 167. (4) The priority of a deed of trust over subsequent mechanic's liens is not defeated because all of the money secured thereby was not advanced prior to the commencement of the work on which the mechanic's lien is claimed. Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747, 3 P.2d 481; Martsolf v. Barnwell, 15 Kan. 612; Blackmar v. Sharp, 23 R. I. 412, 50 A. 852; Platt v. Griffith, 27 N.J.Eq. 207; Richards v. Waldron, 9 Mackey (D. C.) 585. (5) Cestuis que trustent under a mortgage must be made parties to a mechanic's lien suit and served with process, actual or constructive, in order to bind their interests by the judgment entered therein. The rights of the noteholders under the deed of trust of February 20, 1926, could not be held inferior to the mechanic's lien claim of defendant Moeller. Russell v. Grant, 122 Mo. 173; Langdan v. Kleeman, 278 Mo. 242; Riverside Lumber Co. v. Schafer, 251 Mo. 539; Secs. 3178, 3181, R. S. 1929. (6) The rights of the holders of notes secured by the deed of trust dated February 20, 1926, were disclosed by the public records, and, in the absence of their being served with process, their rights could not be subordinated to the mechanic's lien claims by the judgment in this case. Sec. 3181, R. S. 1929; Russell v. Grant, 122 Mo. 173; Langdan v. Kleeman, 278 Mo. 242; Riverside Lumber Co. v. Schafer, 251 Mo. 539. (7) The lien statement of plaintiff Schroeter Bros. Hardware Company was insufficient because it lacked dates, specific prices of the items, and jumbled items furnished as original contractor with items furnished as a materialman. Planing Mill Lumber & Construction Co. v. Krebs, 196 Mo.App. 432; Planing Mill Co. v. Allison, 71 Mo.App. 258; Cahil, Collins & Co. v. Orphans' School, 63 Mo.App. 33; Edgar v. Salisbury, 17 Mo. 271; Livermore v. Wright, 33 Mo. 31; Floreth v. McReynolds, 205 Mo.App. 143; Darlington Lumber Co. v. Harris, 107 Mo.App. 148; Gauss v. Hussmann, 22 Mo.App. 115; Bruns v. Braun, 35 Mo.App. 337; Kern v. Pfaff, 44 Mo.App. 29; St. Louis Fire Door & Sheet Metal Works v. Viviano, 194 Mo.App. 440. (8) The mechanic's lien statement filed by defendant Moeller was insufficient in law and did not constitute a true and just account because: (a) Said account was not properly itemized and detailed as required by the law. Rude v. Mitchell, 97 Mo. 372; Neal v. Smith, 49 Mo.App. 328; Planing Mill Lumber & Construct. Co. v. Krebs, 196 Mo.App. 432; McWilliams v. Allan, 45 Mo. 573. (b) Nonlienable items were included therein. Works v. Brown, 50 Mo.App. 407; Marshall v. Bank, 76 Mo.App. 92. (c) Said account in its entirety was not a just and true account. N. O. Nelson Mfg. Co. v. Doherty, 191 S.W. 985; State ex rel. v. Shelton, 238 Mo. 292; Gill v. Harris, 24 S.W.2d 677; Center Creek Mining Co. v. Coyne, 164 Mo.App. 510; Dougherty v. Rothbaum, 156 Mo.App. 219.

Geo. Eigel and W. S. Campbell for respondent.

(1) No exceptions were filed by the defendant Croatian "Sokol" Gymnastic Association to the report of the Referee, excepting to the finding that the lien claim of Moeller was prior to the "Duchon deed of trust," that is, the deed of trust executed on the 22nd day of June, 1926, and recorded on the 23rd day of June, 1926, and having failed to except to the Referee's report upon this point, the question cannot now be raised. Van Hoose v. Hines, 180 S.W. 30; Dallas v. Brown, 60 Mo.App. 493; State ex rel. v. Woods, 234 Mo. 24; Smith v. Haley, 41 Mo.App. 613; Cahill, Swift & Co. v. McCornish, 74 Mo.App. 613; Singer Mfg. Co. v. Givens, 35 Mo.App. 610. (2) The appellate court is expressly prohibited by statute from considering any exceptions not called to the attention of the trial court. The finding of the referee that the lien claim of defendant Moeller was, prior to the deed of trust of June 22, 1926, not having been called to the attention of the trial court in the exceptions to the referee's report, or in motion for a new trial, cannot be considered by this court. Sec. 1061, R. S. 1929; Van Hoose v. Hines, 180 S.W. 30. (3) A mechanic's lien dates from the commencement of the work on the building. The work of wrecking an old building and excavating for and putting in foundation for a new building was done prior to the execution of the deed of trust of February 20, 1926, and the referee so found and gave lien claim of Moeller priority over deed of trust. Sec. 3163, R. S. 1929; Hammond v. Darlington, 109 Mo.App. 343; Holland v. Cunliff, 96 Mo.App. 75; Riverside Lbr. Co. v. Schafer, 251 Mo. 548; Langdon v. Kleeman, 211 S.W. 878; Hydraulic Brick Co. v. Bormans, 19 Mo.App. 668; Raithel v. Hamilton-Schmidt Surgical Co., 48 S.W.2d 79; Julius Seidel Lumber Co. v. Hydraulic Press Brick Co., 288 S.W. 980; Redlon v. Badger Lbr. Co., 189 S.W. 589. (4) The cross-petition of defendant Moeller alleged priority of his lien over the deeds of trust, and the trustee and cestui que trust and unknown holders of the notes described in the deeds of trust having been made parties and served with process, and having made default, have admitted by their default all material allegations of the petition. Dierks & Sons Lbr. Co. v. Taylor, 296 S.W. 180; Evans v. Dockins, 40 S.W.2d 508; McCutchin v. Batterton, 1 Mo. 342; Robinson v. Lawson, 26 Mo. 69; Price v. Page, 24 Mo. 67; Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 41, 139 S.W. 104. (5) Publication sued out by the plaintiff was sufficient for the whole case, and it was unnecessary for the defendant Moeller to sue out publication as to unknown holders of notes on his cross-petition in the same case. Hydraulic Press Brick Co. v. Lane, 200 S.W. 311. (6) Publication in a mechanic's lien case as to unknown holders of notes is not required. The trustee and cestui que trust, and all parties as shown by the proper public record, were made parties defendant and were brought in by proper service. Sec. 3181, R. S. 1929; Evans v. Dockins, 40 S.W.2d 508; Redlon v. Badger Lbr. Co., 189 S.W. 589. (7) A mechanic's lien claimant may unite in one mechanic's lien count all of the various items under the several proposals and contracts and several items of extra work, provided the lien is filed within the statutory time after the completion of the last work under each separate contract. Kittrell v. Hopkins, 114 Mo.App. 438; Grace v. Nesbitt, 109 Mo. 16; Kern v. Pfaff, 44 Mo.App. 35. (8) To entitle the defendant Croatian "Sokol" Gymnastic Association to a deduction from the claim of Moeller for work not done or for damages for defective work, some substantial evidence should have been offered as to the value of work not done or as to the cost of repairing damages resulting from defective work. Smith v. Rapid Transit Ry. Co., 60 Mo.App. 591; Noffsinger v. Bailey, 72 Mo. 219. (9) Where the contract for work on a building is made with the owner, the lien statement is not defective if the items of the various materials and labor are not set out; the lien statement is sufficient if it is as definite as the contract. McCarthy Lbr. & Construction Co. v. Kinder, 225 S.W. 1026; State ex rel. v. Reynolds, 232 S.W. 1035; McMillan & Parker v. Gunning, 190 Mo.App. 340, 177 S.W. 315; McMillan & Parker v. Ball & Gunning Milling Co., 204 S.W. 257; Natl. Press Brick Co. v. Const. Co., 177 Mo.App. 573.

Gustave A. Stamm and Maurice L. Stewart for Edward W. Tobin, Trustee in Bankruptcy.

(1) The plaintiff's lien claim is prior and superior to the Duchon deed of trust, both as to the land and the building even though it may have been a purchase money deed of trust, because the trustee and named cestui que trust were personally served, and the unknown holder of the note, if the note had been assigned, was served by publication, all made default, and a default judgment having been granted as to them, the default admitted the allegation in the petition that plaintiff's mechanic's lien was prior and superior to the deed of trust. Brown Construction Co. v. MacArthur Bros. Co., 236 Mo. 41, 139 S.W. 104; Electrolytic Chlorine Co. v. Wallace & Tiernan, 41 S.W.2d 1052; Stein v. Rainey, 315 Mo. 546, 286 S.W. 53; Dierks and Sons Lumber Co. v. Taylor, 296 S.W. 180; Evans v. Dockins, 40 S.W.2d 508; Sec. 800,...