The State ex rel. St Francois County Building & Loan Association v. Reynolds
| Decision Date | 23 June 1921 |
| Citation | 232 S.W. 1035,288 Mo. 522 |
| Parties | THE STATE ex rel. ST FRANCOIS COUNTY BUILDING & LOAN ASSOCIATION v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals |
| Court | Missouri Supreme Court |
Writ quashed.
Jerry B. Burks for relator.
(1) The opinion of the learned Court of Appeals in holding: 1st, that the first two items of the lien claim or account filed by plaintiff, was sufficient without specifying any of the material or labor; 2nd, that an original contractor with the owner was not required to make his lien claim as specific and definite as sub-contractors; 3rd, that if the lien claim was as definite as the contract under which it is furnished, it is sufficient; and, 4th, that these principles may be applied even where the rights of a third party or creditors are involved, is absolutely contrary to and in defiance of the principles of law set forth by this court in Rude v Mitchell, 97 Mo. 372; Grace v. Nesbitt, 109 Mo 19; Mitchell Planing Mill Co. v. Allison, 138 Mo 58; State ex rel. O'Malley v. Reynolds, 266 Mo 597. (2) The learned court refers to the contract as being an aid of the lien account. As to this we will say that the contract was not filed with the lien claim and therefore cannot aid same. The lien claim must stand or fall on its own merits. Coe v. Ritter, 86 Mo. 287; O'Shea v. O'Shea, 91 Mo.App. 231.
J. P. Cayce and Wm. M. Fitch for respondents.
(1) This decision is not in conflict with the last decisions of this court, but on the contrary it is in harmony with the principles of law set forth in the following decisions: Hilliker v. Francisco, 65 Mo. 598; State ex rel. O'Malley v. Reynolds, 266 Mo. 595; Grace v. Nesbitt, 109 Mo. 9; Mitchell Planing Mill v. Allison, 138 Mo. 50. Neither is it in conflict with the decision in Rude v. Mitchell, 97 Mo. 365, for the reason that the lien claim in that case was based upon a quantum meruit, while the claim in the instant case is based upon an express contract "to do an entire job, by the job, and for an entire price," and for that reason the statements in the opinion in Rude v. Mitchell do not apply to the case at bar. (2) Where the work was done or the materials furnished under a contract with the owner for a specified sum, the contract being entire, it is not necessary that the claimant in his lien statement itemize his account. Mechanics Liens, 27 Cyc. 188; 2 Jones on Liens (3 Ed.), sec. 1406, p. 634; Rockel on Mechanics Liens, sec. 116, p. 309; Hilliker v. Francisco, 65 Mo. 598; Grace v. Nesbitt, 109 Mo. 9; Mitchell Planing Mill v. Allison, 138 Mo. 50; Marshall v. Hall, 200 S.W. 774; Brick Co. v. Const. Co., 177 Mo.App. 573; Busso v. Fette, 55 Mo.App. 453; Kern v. Praff, 44 Mo.App. 34; Mahan v. Brinnell, 94 Mo.App. 165. (3) The Court of Appeals did not decide "that an original contractor with the owner was not required to make his lien claim as specific and definite as sub-contractors." It did say, that "when the lien is filed by the original contractor who has specifically agreed with the owner to do the job for a certain price a detailed statement is not required, as the owner knew what he bargained for when he agreed on the price." That statement is quoted from Mahan v. Brinnell, 94 Mo.App. 165, and it has never been contradicted by the Supreme Court. Also, the Court of Appeals did say: "We think this account was such a statement of the claim as fairly appraised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such, then it was sufficient." That statement is in accordance with the rule of law announced in Mitchell Planing Mill v. Allison, 138 Mo. 56, and it has never been contradicted by the Supreme Court. (4) There is no subcontractor in this suit, and any statement if made by the court, in regard to a sub-contractor's claim, would be obiter. The statute does not require the lien claimant to file an "itemized" account of his demand, but he is required to file a "just and true" account. Sec. 7221, R. S. 1919. "The account may consist of one or more items." Mitchell Planing Mill v. Allison, 138 Mo. 56.
Certiorari.
This is an original proceeding by writ of certiorari against respondents as Judges of the St. Louis Court of Appeals wherein our constitutional authority is invoked to determine whether an opinion delivered by respondents is in conflict with certain decisions of this court.
The case of McCarthy Lumber & Construction Company, Respondent, v. Lee F. Kinder, Eva Kinder, St. Francois County Building & Loan Association (relator here) and Oscar L. Haile, appellants, came to the St. Louis Court of Appeals by appeal from the St. Francois County Circuit Court.
As appears from the opinion of respondents, Kinder and wife made a contract with McCarthy Lumber & Construction Company for the erection of a house on a lot owned by them. The contract was evidenced by a letter. So much of it as is of importance here is as follows:
Relator furnished the money for the erection of the house and took a deed of trust from the Kinders. The construction company erected the house in accordance with the contract, and the Kinders failed to pay the full contract price and for certain extras, leaving an unpaid balance of $ 960.19. Thereupon and in due time the construction company filed with the circuit clerk an account of its demand, in which the first two items are as follows:
The contract for enlarging the basement was made subsequent to the building contract, but was a complete and separate agreement. The other items of the account covered the extras, and the sufficiency of the statement as to them is not in dispute. There were about fifty items of such extras set out in said account.
Upon the trial of the suit filed to enforce such lien, defendants objected to the introduction of the lien account, for the reason it was not a true and correct account of the demand within the meaning of the Mechanic's Lien Statute (Sec. 7221, R. S. 1919), because the first two items do not state the nature of the work done or material furnished or items thereof. On appeal respondents held the lien account to be sufficient, and that the contractor did not need to set out these items with any greater particularity than they were stated in the contract. The opinion held:
"We think this account was such a statement of the claim as fairly apprised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such then it was sufficient."
In arriving at this conclusion respondents said:
Relator contends such ruling is in conflict with certain designated controlling cases decided by this court, to-wit: Rude v. Mitchell, 97 Mo. 365, 372-3, 11 S.W. 225; State ex rel. O'Malley v. Reynolds, 266 Mo. 595, 598-9, 182 S.W. 743; Grace v. Nesbitt, 109 Mo. 9, 18-19, 18 S.W. 1118; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 54-5, 40 S.W. 118-6-8, 40 S.W. 118.
It was said by Black, J., in Rude v. Mitchell, supra:
A reference to the facts stated shows the contract price was not agreed on and the suit was on quantum meruit. The sufficiency of a lien account covering in one item a charge for a complete structure at a price fixed by contract was not determined in the Rude case. What was said therein concerning a lumping item of the whole contract price not being a compliance with the law, was not necessary to the decision in that case.
In State ex rel. O'Malley, Admr., v. Reynolds supra, was a proceeding by writ of certiorari in which the sufficiency of a lien account was involved. Blair, J., said: ...
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