Tull v. Fletcher
| Decision Date | 11 June 1917 |
| Parties | W. G. TULL, Plaintiff, v. FRANK C. FLETCHER et al., Defendants, FRANK C. FLETCHER and ADARESTA T. FLETCHER, his wife, Respondents; BERKSHIRE LUMBER COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court--Hon. Thomas J. Seehorn, Judge.
Judgment reversed and cause remanded. (with directions.)
Ellis Cook & Barnett for appellant.
Ball & Ryland, for respondent.
The suit out of which this appeal grew was brought as an equitable action, under sections 8235a-g (Laws 1911, p. 314) by one of several lien-claimants to determine for all parties the various rights involved in the matter of the establishment and enforcement of certain mechanic's lien-claims. The chancellor heard the case in all its ramifications and rendered a decree adjusting and disposing of the different claims. Of these, only one now remains in controversy, that of the appellant the Berkshire Lumber Company, to whom the chancellor awarded a personal judgment for the value of the lumber and materials it furnished, but denied a lien therefor.
Before rendering his decree the chancellor made a finding of facts. And in the statement of the case which we hereinafter make, only such facts are stated as were found by him or which are conceded in the evidence of both sides to the appeal.
On June 6, 1913, Clarence L. Brown became the owner of Lot 48 in Bowling Green an addition to Kansas City, otherwise known by its street number as 26 East 56th Street Terrace. While still the owner thereof, and sometime previous to June 24, 1913, he contracted with the Berkshire Lumber Company, the appellant, to furnish and sell to him "all the lumber which said Brown should require in the erection and installation of improvements which said Brown was then beginning upon the said property." These improvements were for the erection of a dwelling on said lot and the making of the same into a place of residence.
Pursuant to said contract, appellant on June 24, 1913, began delivering upon the property the lumber and materials for which the lien now in question is sought, and Brown commenced the improvements. Thereafter, and while the improvements were in the course of erection, Brown, on July 1, 1913, by warranty deed transferred the lot to the Fletchers, the respondents herein. This deed was made pursuant to a contract Brown had with the Fletchers to transfer said lot to them and to erect thereon a residence with appurtenances for a stipulated sum which was to include the purchase price of said lot. This contract was dated June 12, 1913, and may have been in existence at the time Brown contracted with the Lumber Company for the materials, but said company had no notice nor knowledge of the Fletcher contract until at the trial of this cause in November, 1915.
After deeding the property to the Fletchers, which deed was recorded July 3, 1913, but which contained no reference to the contract of June 12th, Brown continued making the improvements on said lot; and appellant, from time to time as ordered, delivered on said property the materials therefor under the contract it had with Brown to furnish all that he should require for that property. Said materials, so furnished and delivered, were all built into the permanent improvements on said property and were all charged in one running account against Brown for that lot.
The first item in the account was dated June 24, 1913, and the last item was dated November 4, 1913. The item next before the last was dated September 29, 1913. The lien-claim was filed April 8, 1914. Consequently, if the item of November 4th can be properly included in the account as lienable, then the lien-claim was filed within the six months given by section 8217, R. S. 1909, to an original contractor in which to file his claim for lien. But if the item of September 29th must be taken as the end of the lienable account then the lien-claim was not filed within six months thereof. On the theory that the item of November 4th should not be considered, and that the account must be deemed to have accrued on September 29th, the chancellor denied the lien because the lien-claim was not filed within six months of that time. This is the only matter affecting appellant's right to a lien. In all other respects the requirements of the statute for the establishment of a lien by an original contractor were complied with. The theory upon which the court decided that the item of November 4th could not be considered as the end of the lien account will be stated later.
It will be observed that Brown, while owner of the real estate, contracted with appellant to furnish all the materials he should require for the residence he was creating on said lot and that in the midst of the construction thereof he conveyed the property to the Fletchers. This does not affect appellant's right to a lien as an original contractor, even though most of the materials were delivered and built into the property after such transfer. [McAdow v. Sturtevant, 41 Mo.App. 220, 227; Williams v. Chicago etc. R. Co., 112 Mo. 463, 501, 20 S.W. 631; Hammond v. Darlington, 109 Mo.App. 333, 343, 84 S.W. 446; Miller v. Barroll, 14 Md. 173; Wagenstein v. Jones, 63 N.W. 717; Jeffersonville Water Supply Co. v. Riter, 138 Ind. 170, 37 N.E. 652; Green v. Williams, 92 Tenn. 220, 21 S.W. 520; Gale v. Blaikie, 126 Mass. 274; McNeal etc. Co. v. Howland, 111 N.C. 615, 16 S.E. 857; 27 Cyc. 218.] And appellant having contracted with Brown, the owner, and the furnishing of the materials and the constructing of the improvements having commenced while he was such owner, appellant was not bound to take notice of any subsequent conveyance of the property. [Fourth Avenue Baptist Church v. Schreiner, 88 Pa. 124.] And as appellant had no notice nor knowledge of Brown's contract with the Fletchers until long after all rights had accrued and become fixed, the question of appellant's right to a lien must be considered throughout on the basis of appellant being an original contractor dealing with the owner of the property. This feature must not be lost sight of and is important, as will more clearly appear later on. Under the circumstances of this case, there never was a time when the Fletchers, the subsequent owners of the property, were entitled to have appellant's right to a lien considered on the theory that, as to the last item of said account, Brown was a contractor and not an owner of the property.
The last item of said account was two pieces of 4 inch by 4 inch cypress, 14 feet long, set in concrete on the rear of said property as laundry posts and permanently affixed as an improvement of the same. Brown was a builder of many houses and it was his practice to erect, as a part of his improvement in building a house, laundry posts in the yard. The specifications for the improvements, in the contract the Fletchers had with Brown did not mention laundry posts, but Mrs. Fletcher says in her testimony that she talked about them when the house was being planned. When the Fletchers moved into the house on November 3, 1913, they noticed that there were no laundry posts installed. Mr. Fletcher then told his wife she had better request Mr. Merchen, Brown's carpenter foreman, to secure them. Mrs. Fletcher then inquired of Mr. Wagner, Brown's superintendent, if Mr Brown would put them in and he told her that Mr. Brown would as it was usual for him to do so with all his customers. Wagner then reported Mrs. Fletcher's request to Mr. Brown and was instructed by said Brown to put them in. Wagner then ordered the lumber for said posts of the appellant and they were delivered on the property November 4, 1913, and the same, as two pieces of select cypress, were charged to Brown's account for said property. And they were then permanently affixed as an improvement on the property as hereinbefore stated. At this time Brown had not completed the improvement of the property under his contract with the Fletchers and did not finish until Thanksgiving Day, November 27, at which time he finished sodding the yard. The last carpenter work on the house itself was done October 31st, but the court found that Brown did...
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