Tual v. Martin

• Citation: 66 S.W.2d 969,228 Mo.App. 30
• Parties: CHARLES J. TUAL, DEFENDANT IN ERROR, v. NICHOLAS MARTIN, PLAINTIFF IN ERROR, AND OLIVE K. COX, ADMINISTRATRIX OF THE ESTATE OF WALTER W. COX, DECEASED, AND MARVIN E. BOISSEAU, TRUSTEE, DEFENDANTS IN ERROR
• Decision Date: 13 November 1933
• Court: Court of Appeal of Missouri (US)

66 S.W.2d 969

228 Mo.App. 30

CHARLES J. TUAL, DEFENDANT IN ERROR, v. NICHOLAS MARTIN, PLAINTIFF IN ERROR, AND OLIVE K. COX, ADMINISTRATRIX OF THE ESTATE OF WALTER W. COX, DECEASED, AND MARVIN E. BOISSEAU, TRUSTEE, DEFENDANTS IN ERROR

Court of Appeals of Missouri, Springfield

November 13, 1933

Motion for rehearing denied, January 10, 1934.

Writ of Error to Circuit Court of Iron County.--Hon. E. M. Dearing Judge.

AFFIRMED.

Judgment affirmed.

Williams Henson & Stone and Bryan Wilson for plaintiff in error.

Edgar & Banta for defendant in error, Charles J. Tual.

Counsel for plaintiff in error.--A contractor may have a lien on real estate only to the extent of one acre. Section 3156, Revised Statutes 1929. The lien claim filed must identify the particular acre or the lien will fail. Williams v Porter, 51 Mo. 441; Wright v. Beardslee, 69 Mo. 548; Ranson v. Shehan, 78 Mo. 668. The term "cost plus labor and material" has a definite meaning and the presumption is that it was so used. Meulenbergh v. Coe, 160 N.Y.S. 581, 13 C. J. 531, 532. A contractor in a cost plus contract is in the nature of an agent and must fulfill his obligations of honesty, diligence and good faith to the owner. Title Guarantee Trust Co. v. Pam, 182 N.Y.S. 824, 21 R. C. L. 828, 829. When a creditor has made an application of payments, neither the creditor nor the court may make a different application. 48 C. J. 654; Boff v. Wittich, 88 Mo.App. 129.

Edgar & Banta for defendant in error, Charles J. Tual.

The inclusion of too much land in a lien account, petition or affidavit is not fatal in the absence of fraud and the lien will attach against the proper quantity of the parcel of land. Phillips Mechanics Liens (3 Ed.), 387; Ball Bros. v. McCray, 45 Mo.App. 365, 372; Jones Labor Co. v. Snyder, 300 S.W. 850; Bradish v. James, 83 Mo. 313; Kirkwood Mfg. & Sup. Co. v. Sunkel, 148 Mo.App. 136, 142. The court had authority to appoint a commissioner to make survey of the ground (one acre) on which the stone dwelling is located. Ball Bros. v. McCrary and Jones Lbr. Co. v. Snyder, supra. The court found that the contract provided for payment to Tual of ten per cent of the total cost of materials and labor, including pay for Tual's time. Both items were lienable. Fagan v. Brock Motor Car Co., 282 S.W. 135, 138. Payments were made from time to time by defendant, Martin, without any direction as to their application. The plaintiff, Tual, did not apply the payments to any particular item or items; he simply entered credit therefor generally. Under these circumstances, if any of the items were not lienable, the law applied the credit first to the unsecured items. Price v. Merritt, 55 Mo.App. 640, 645; Fagan v. Brock Motor Car Co., 282 S.W. 135, 138.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.--

Charles J. Tual instituted this action in the circuit court of Iron county against Nicholas Martin, and Olive K. Cox, administratrix of the estate of Walter W. Cox, deceased and Marvin E. Boisseau, trustee, to enforce a mechanic's and materialman's lien.

The petition alleged that the defendants, other than Nicholas Martin, were beneficiary and trustee, respectively, in a deed of trust which remained unsatisfied of record and which was executed on the 20th day of December, 1927, by Charles A. Wurst to Marvin E. Boisseau, trustee, of Olive K. Cox, administratrix of the estate of Walter W. Cox, deceased, to secure to the last named person the payment of three principal notes, "but plaintiff says he is informed and believes, and upon such information and belief he charges the fact to be that said deed of trust has been fully paid and discharged."

The defendant, Nicholas Martin, appeared in person and by counsel, and contested the action, but the other defendants defaulted.

The petition alleges a balance due for materials and labor furnished under contract and used in the construction of a two-story stone dwelling with slate roof, on the premises belonging to Nicholas Martin, and the lands were described as a tract containing three hundred acres, excepting railroad right of way and three acres out of the northwest corner. The description was a general description of a farm. The petition alleged the ownership of the farm by Martin, the existence of the unsatisfied deed of trust, the allegations of contract for the erection of the dwelling, between Tual and Martin, the due filing of the lien account showing the balance due, and prayer for judgment in the sum of $ 1,944.12, with interest, and a prayer for first lien against the premises described, said premises being approximately three hundred acres.

The defendants were all residents of the city of St. Louis. The summons was directed to the sheriff of the city of St. Louis, and all the defendants were served in said city by the sheriff thereof.

The defendant, Nicholas Martin, filed a demurrer to the petition, appearing especially for that purpose, setting out as grounds for the demurrer that the court had no jurisdiction of the subject-matter of the action or of the person of said Martin, because it appeared from the petition and the lien account that the plaintiff was endeavoring to enforce a mechanic's lien upon approximately three hundred acres of ground contrary to the statutes, and that it appeared from the return of service that service was had upon all the defendants in the city of St. Louis upon a cause of action brought in Iron county.

The court overruled the demurrer, and the plaintiff claiming that he had no right of entry upon the premises for the purpose of making a survey to determine the metes and bounds of the one acre of ground upon which the stone dwelling stands, asked the court to appoint a commissioner to make such survey. The court appointed W. L. Scoggins, County Surveyor. The survey was made under order of the court, the report of survey was filed and offered in evidence with the lien account.

The answer of Nicholas Martin was a general denial.

The court, sitting as a jury, found that the plaintiff, Tual, was employed by the defendant, Martin, to build the dwelling house described in the pleadings and that the plaintiff was to purchase, furnish and pay for all labor and materials entering into the construction of said improvements and that he was to be repaid therefor by Martin and that said Tual was to be paid for his labor performed in connection with the construction thereof as part of the total cost of said improvement, and, in addition thereof, said Charles J. Tual was to be paid the sum of ten per cent of the total cost of all labor and materials entering into the construction; that the proper procedure relative to filing the lien and suit was followed; that all the items set forth in the lien were furnished to the said Martin by the said Tual and that the balance due the said Tual was the sum of $ 1,944.12.

The court then found that certain items in a sum not be exceed $ 1,500 were furnished for the construction and repair of other buildings, roadways, etc., than the two-story stone dwelling, which sum the court set at $ 1,500; that the said Martin had paid to the said Tual more than sufficient moneys to pay for the construction and repair of the other matters and things in the sum of $ 1,500; that the said Tual, in the absence of any direction by the said Martin as to the application of the payments, had applied the payments generally on the account. The court then found that the dwelling house is located upon the one acre surveyed by the Commissioner and that the said Martin was indebted to the said Tual in the sum of $ 1,944.12. The court then applied sufficient of the payments made by the said Martin to that part of the account not involved in the erection of the dwelling house and decreed a lien on the dwelling house and the one acre of ground in the sum of $ 1,944.12 to secure the judgment in that amount also decreed by the court.

Motions for new trial and in arrest of judgment were filed on behalf of the plaintiff in error and overruled. There are several assignments of error set out before us in the record.

We are first confronted with the contention, raised in the trial by demurrer, that the court was without jurisdiction of this case because the defendants were all of them residents of the City of St. Louis, and were served by process within the City of St. Louis, by the sheriff of that city, to appear for trial within Iron County.

The defendant Martin contends in support of his demurrer, that by reason of the provision of Section 720, Revised Statutes of Missouri, 1929, the trial court was without jurisdiction in this case, because the suit was not brought within the county where the defendant resides, and that the defendant was not found and served with process within Iron county.

Without attempting to pass on this contention as a general proposition, we are confronted with a situation on this appeal where the defendant has waived any rights on demurrer, if any he had by reason of improper service of process, by answering over after his demurrer had been overruled. "If the demurrant pleads over after his demurrer is overruled the case then stands as if no demurrer had been filed." [49 C. J., page 459, section 567; City of Weston v. Bank of Greene County (Mo. App.), 192 S.W. 126, 127; Mertens v. McMahon, 28 S.W.2d 456, 459, and cases there cited.] The above rule may be subject to some exceptions, but we think, and hold that when the defendant answers over, as in this case, he waives all questions as to service of process upon him.

The defendant contends that the plaintiff may have a lien upon only one acre of land. We think under the provision of Section 3156, Revised Statutes of Missouri, 1929, that there can be no question about that.

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