Seibel v. Siemon

• Decision Date: 31 October 1880
• Citation: 72 Mo. 526
• Parties: SEIBEL, Appellant, v. SIEMON.
• Court: Missouri Supreme Court

72 Mo. 526

SEIBEL, Appellant,

v.SIEMON.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Kehr & Tittman for appellant.

The value of the ice-house as a building on the premises, is the measure of damages. Raymond v. Ewing, 26 Ill. 329; North Presbt. Church v. Jevne, 32 Ill. 214; Croskey v. North W. M. Co., 48 Ill. 481; Dingledine v. Hershman, 53 Ill. 280; Howett v. Selby, 54 Ill. 151; Whittenack v. Noe, 11 N. J. Eq. (3 Stockton) 321; Newark L. & C. Co. v. Morrison, 13 N. J. Eq. (2 Beasley) 133; Whitehead v. First M. P. Church, 2 McCarter (15 N. J. Eq.) 135; Smith v. Phelps, 63 Mo. 585; Russell v. Defrance, 39 Mo. 506, 512; Phillips on Mechanic's Liens, 344; Taber v. Jenny, 1 Sprague 315; Hilborne v. Browne, 12 Me. 162; Priestley v. Johnson, 67 Mo. 632; Soulard v. St. Louis, 36 Mo. 546.

The mechanic's lien is a statutory right of modern origin and peculiar to this country. It was intended to develop a new country by encouraging the erection of buildings and protecting those whose labor and materials were put into them. If the erection of buildings is to be fostered, and the claims of those whose labor and materials are incorporated in them, are to be secured, it follows that the building once erected must be maintained, and any construction of law which pre-supposes the destruction of the building contravenes the spirit of the statute.

The statute should be fairly construed so as to advance the remedy. Oster v. Rabeneau, 46 Mo. 595; Putnam v. Ross, 46 Mo. 337; Buchanan v. Smith, 43 Miss. 90. Is it to be supposed that the law-makers intended, in a case like the present, to limit the lor's recovery under a statute designed to protect him, to a pittance not exceeding on an average ten per cent of the value of the building which he erects?

Defendant is a wrongdoer. He should not be permitted to profit by his own wrong, as he will if he gets this building at what it is worth as old lumber. Rice v. Hollenbeck, 19 Barb. 664; Walther v. Wetmore, 1 E. D. Smith (N. Y.) 7. Cases such as Dame v. Dame, 38 N. H. 431; Osgood v. Howard, 6 Me. 452; Russell v. Richards, 10 Me. 429; Tapley v. Smith, 18 Me. 12; Smith v. Benson, 1 Hill 176, are very numerous, in which it is held that if the owner of land resists the removal of a building, which another has the right to remove, he will be liable in trover for the value of it. How that value is to be estimated, does not appear in express terms; but as the party in the wrong is liable for the value of the building, the inference is that it is the value of the building standing, on the ground, and not simply the value of the materials in it. If the latter were the view, it would be so stated, inasmuch as a building and the materials in it are two very distinct things.

A building consists of the materials which enter into it and of the labor which incorporates them in the structure. The labor generally represents the greater portion of the cost. To arrive at the value of a building, therefore, both the labor and the materials must be estimated. Where the owner is to be compensated for a building, both the labor and the materials must be paid for. To pay for the one and exclude the other is not compensation, but a denial of it

Broadhead, Slayback & Haeussler for respondent.

The court having found that there was no malice or willfulness on respondent's part in the refusal to let the appellant remove the materials, the allowance of damages can be on the theory of compensation only. Franz v. Hitterbrand, 45 Mo. 121; Walker v. Borland, 21 Mo. 289, 293; Robison v. Rupert, 23 Pa. St. 524; Perkins v. Hackleman, 26 Miss. 41. The damages are not measured by the benefit derived by the respondent for the alleged conversion--it may have been worthless to him, (as was the fact,) in which case the appellant would find his recovery to be nothing, if that criterion was to govern--neither by the cost of the building, for its value may have appreciated or depreciated since it was put up. If appellant got any title whatever to anything by his purchase at sheriff's sale, it was the right, (Wag. Stat., § 3, p. 906,) where the execution debtor has no longer any interest in the land, “to have such building, erection or improvement sold under execution, and the purchaser thereof may remove the same within a reasonable time thereafter.” He, therefore, is not entitled to the actual value of the building as it stands, for the simple reason that he is not entitled to the building as it stands. The true measure is the market value of the materials, subject to statutory restriction of removal within a reasonable time--not what the first cost had been--nor what they were worth subject to different conditions, but what was the market value of the materials with the obligation or incumbrance of removal as the statute required. Waters v. Stevenson, 13 Nev. 157; Sedgwick Meas. Dam., 472, 488; 2 Greenleaf Ev., § 253; Delegal v. Naylor, 7 Bing. 460; State to use, etc., v. Smith, 31 Mo. 566; Conard v. Pacific Ins. Co., 6 Pet. 268; Spencer v. Vance, 57 Mo. 430; Powell v. McAshan, 28 Mo. 70; Goodman v. H. & St. Jo. R. R. Co., 45 Mo. 33: Ombony v. Jones, 19 N. Y. 234; Myers v. Burns, 33 Barb. 401; King v. Wilcomb, 7 Barb. 263; Dubois v. Kelly, 10 Barb. 496; Field on Damages, § 734.

HENRY, J.

One Eckerle was the owner in fee of a block of ground in St. Louis, and on the 16th day of November, 1863, conveyed it in trust to secure certain notes described in the trust deed, and afterward erected a brewery upon said lot, and, in 1870, the ice-house in controversy in this suit. The mechanics who erected the ice-house filed liens upon it in January, 1871, and in February, 1871, suits were instituted on said liens, and prosecuted to judgment rendered in May, 1871. Executions were issued on said judgment, under which Seibel purchased the ice-house. Prior to the sale under the said execution, in May, 1871, Siemon had purchased the entire property at a sale under the deed of trust, and taken possession of the property. Seibel, after he purchased the ice-house, and within the time prescribed by the statute, demanded of Siemon permission to enter and remove it, which the latter refused, denying Seibel's right to the ice-house, and alleging that its removal, on account of its peculiar construction over a large deep vault, would greatly injure his premises, and, as a compromise, offering to pay him the fair and reasonable value of the materials of which it was constructed, less the cost of its removal. The building was one which could be removed only by piece-meal. Seibel rejected Siemon's proposition, and commenced this suit to recover damages. The circuit court allowed plaintiff to recover the value of the house as it stood on the ground, $2,800. The court of appeals reversed the judgment, holding that he was entititled to recover only what it would be worth removed, and the evidence on that point was, that it was worth about $820. From the judgment of the court of appeals plaintiff has appealed to this court.

Under the third section of the act in relation to mechanics' liens, a lien for work and materials attaches to the building against a prior deed of trust, and the person enforcing it may have the building sold under execution, and the purchaser may remove it within a reasonable time. Wag. Stat., 908. The mechanic or material man acquires no lien upon the land, and substantially, the only right acquired by the purchaser, is the right to remove the building within a reasonable time. The purchaser under the deed of trust acquires the title to both the land and the building, subject only to the right of the purchaser of the building under the udgment for the mechanic's lien, to remove it.

For the wrong done such purchaser by a refusal to permit him to exercise his right of removal, what is the measure of damages? Prof. Greenleaf, in his work on evidence, says: “Damages are given as a compensation, recompense or satisfaction to the plaintiff, for an injury actually received by him from the defendant; they should be precisely commensurate with the injury, neither more nor less; and this whether it be to his person or estate.” § 253. “All damages must be the result of the injury complained of, whether it consists in the withholding of a legal right, or the breach of a duty legally due to the plaintiff.” § 254. There is a controversy on this subject between this author and Mr. Sedgwick, the latter insisting that the doctrine announced by Prof. Greenleaf is incorrect, and contending for the broader doctrine that: “Wherever the elements of fraud, malice, gross negligence or oppression, mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive or exemplary damages.” Sedgwick on Damages, 39. They are agreed, however, that in the absence of the elements of fraud, malice,...