Twin Bridges Const. Co., Inc. v. Ferner, 13891

CourtCourt of Appeal of Missouri (US)
Citation700 S.W.2d 534
Docket NumberNo. 13891,13891
PartiesTWIN BRIDGES CONSTRUCTION CO., INC., a Missouri corporation, d/b/a Adams Construction, Plaintiff-Respondent, v. Donald W. FERNER and Elizabeth Ferner, his wife, Defendants-Appellants.
Decision Date13 November 1985

Harold L. Henry, Henry, Henry & Henry, West Plains, for defendants-appellants.

JoAnne Spears Jackson, Bussell, Hough, O'Neal, Crouch & Hall, Springfield, for plaintiff-respondent.

FLANIGAN, Judge.

Plaintiff Twin Bridges Construction Company, Inc., a Missouri corporation, d/b/a Adams Construction, sued defendants Donald Ferner and Elizabeth Ferner, his wife, for a personal judgment and the imposition of a mechanic's lien, (§ 429.010, et seq.), 1 against defendants' land in Howell County. Plaintiff provided the materials and labor which were used in the construction of the basement of defendants' new house. The jury assessed plaintiff's damages at $9,853.37, the amount sought by the petition. The trial court entered judgment against both defendants in the amount of the verdict and also awarded a mechanic's lien "for said sum ... against the dwelling house of defendants and three acres of land upon which it is located on the following described real estate...." The judgment then described the 40-acre tract on which the house was built. Defendants appeal.

Defendants' first point is that the petition fails to state a claim upon which relief can be granted, "in that the petition did not allege any agreement of the parties as to the obligation of plaintiff or contract price, or breach by defendants."

The petition alleged, in substance: Defendants entered into a contract with plaintiff on September 23, 1982, for the purchase by defendants from plaintiff of materials and labor for the construction of a basement of a house to be built on the described 40-acre tract owned by defendants; pursuant to the contract plaintiff, between September 23, 1982, and February 24, 1983, provided defendants with the materials and labor "at the price and of the reasonable value of $9,853.37"; attached as Exhibit A was an itemized statement showing "the particulars of said indebtedness"; plaintiff, having previously demanded "payment of the account" from defendants, on May 16, 1983, filed with the circuit clerk of Howell County a verified, just and true account of its demand for which plaintiff claimed a lien, together with a description of the land and the names of the owners.

Although the sufficiency of a petition to state a claim may be raised at any stage of the proceedings, and even initially on appeal, Rule 55.27(g)(2), a petition will be held sufficient after verdict if, coupled with inferences reasonably implied from the facts stated, it advises the defendant with reasonable certainty as to the cause of action he is called to meet and is sufficient to bar another action for the same subject matter. Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W.2d 546, 548 (Mo.App.1983); Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44 (Mo.App.1971). "[A] petition which only imperfectly pleads a claim but which is amendable to a proper statement of that claim without changing the cause of action will be held good after verdict." Barber, supra, at p. 44.

Defendants argue that the petition is defective in three respects: (a) "it does not allege any breach of contract by defendants"; (b) it does not allege that defendants "failed to purchase any item or items"; (c) it does not allege that defendants "failed, following demand, to pay plaintiff's account."

Although the petition alleges that the parties entered into "a contract," it also alleges that the material and labor furnished were of the reasonable value of $9,853.37. The materials and labor furnished were itemized in Exhibit A, "a procedure required under quantum meruit, but not where recovery is sought for a fixed contract amount." Otte v. McAuliffe, 441 S.W.2d 733, 736 (Mo.App.1969).

In support of (a), defendants argue that the petition is based on the theory of quantum meruit and is insufficient to plead an action on an express contract because it fails to plead an agreed contract price. The petition is not a model but it was not challenged by a motion for more definite statement. If it contains, as defendants tacitly concede, allegations which, if proved, would entitle plaintiff to recover on quantum meruit, allegations which are unnecessary to the statement of the cause of action on quantum meruit may be treated as surplusage and disregarded. American Drilling v. City of Springfield, 614 S.W.2d 266, 274 (Mo.App.1981). It is of no moment whether the petition was sufficient to plead a breach of an express contract. Criticism (a) has no merit.

Criticisms (b) and (c) are without merit because they concern issues which, even if not raised by the pleadings, were tried by the consent of the parties and thus they are treated as if they had been raised in the pleadings. Rule 55.33(b). It is not clear what defendants mean by criticism (b), but the evidence showed that the materials and labor itemized in the petition were provided by plaintiff at the request of defendant Donald Ferner. The evidence with respect to Elizabeth Ferner will be discussed later. With regard to criticism (c), plaintiff's evidence, uncontradicted in this respect, showed that, after completion of the work, plaintiff demanded payment and none was made. Moreover, defendants' answer did not plead payment which, under Rule 55.08, is an affirmative defense. Defendants' first point has no merit.

Defendants' second point is that the trial court erred "in entering judgment for plaintiff on a jury verdict under [plaintiff's verdict-directing instruction]." In support of this assertion defendants reargue their first point, which this court has rejected. Further, "[i]f a point relates to the giving ... of an instruction, such instruction shall be set forth in full in the argument portion of the brief." Rule 84.04(e). Defendants' brief fails to set forth the challenged instruction in the argument portion, or indeed in any portion. Defendants' second point has not been preserved for review. Ferguson v. Overhead Door Co. of Springfield, Inc., 549 S.W.2d 356, 362 (Mo.App.1977).

Defendants' third point is that the trial court erred in entering judgment impressing a lien on defendants' land because plaintiff's lien statement was defective and failed to meet the requirements of § 429.080 in that the statement failed to include a description of the specific three acres, § 429.010, "and the rights of third parties, namely the trustee and cestui que trust, were affected thereby." 2

Under § 429.010 a mechanic or materialman, upon compliance with the provisions of Chapter 429, is afforded "a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated to the extent of three acres." 3 (Emphasis added.)

Section 429.080 requires that the lien statement, to be filed with the circuit clerk, contain, among other things, "a true description of the property, or so near as to identify the same, upon which the lien is intended to apply...." Section 429.180 requires that the petition, filed in an action to enforce the lien, "shall contain a description of the property charged therewith." Both defendants having appeared and answered, the interplay of § 429.230 and § 429.240 requires that the judgment, if for the plaintiff, include a correct description "of the property charged with the lien." Hertel Electric Company v. Gabriel, 292 S.W.2d 95, 100[7, 8] (Mo.App.1956).

On May 18, 1983, the plaintiff filed its "statement of mechanic's lien" with the clerk of the Circuit Court of Howell County. The only land description contained in that statement is a description of the 40-acre tract on which the work was done. There was no legal description, nor indeed any mention, of a specific three-acre tract on which the lien was sought to be imposed.

The only land description contained in the petition, filed June 10, 1983, was a description of the 40-acre tract on which the work was done. That document contained no legal description of the specific three-acre tract on which the lien was sought to be imposed. The judgment awarded a mechanic's lien for the sum of $9,853.37 "against the dwelling house of defendants and three acres of land upon which it is located on the following described real estate...." (Emphasis added.) The judgment then described the 40-acre tract on which the house was built.

The present three-acre limitation contained in § 429.010 was, prior to a 1974 amendment of the statute, a one-acre limitation. Several Missouri cases have addressed the problem encountered when a lien claimant fails to take cognizance of that limitation. They include Paradise Homes, Inc. v. Helton, 631 S.W.2d 51 (Mo.App.1981); First Fla. Bldg., Inc. v. Safari Systems, Inc., 570 S.W.2d 728 (Mo.App.1978); and Williams v. Cass, 372 S.W.2d 156 (Mo.App.1963). The cases will be discussed in chronological order.

In Williams the lien statement filed with the circuit clerk, § 429.080, and the petition instituting the action, § 429.180, contained a description of the 320-acre tract on which the house was built but there was no description of a specific one-acre tract to which the lien was limited. The court pointed out the foregoing facts and added that the record reflected "no effort to survey, locate, define, or describe a tract no larger than one acre." The court then said, at p. 160: "Therefore, upon trial plaintiffs could not have been entitled to a judgment impressing a lien. § 429.010; Hertel Electric Co. v. Gabriel, Mo.App. 292 S.W.2d 95, 99-100." Hertel Electric Company contains an exhaustive review of earlier cases dealing with the problem.

In First Fla. Bldg., Inc., the lien statement described the land upon which the lien was claimed as "not more than one acre" of land lying...

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7 cases
  • Babb v. Pfuehler
    • United States
    • Missouri Court of Appeals
    • May 12, 1997
    ...the giving of an instruction is preserved for review where the appellant disobeys Rule 84.04(e). Twin Bridges Const. Co., Inc. v. Ferner, 700 S.W.2d 534, 536-37 (Mo.App. S.D.1985); Shady Valley Park & Pool, Inc. v. Fred Weber, Inc., 913 S.W.2d 28, 34 (Mo.App. E.D.1995); McKee v. Wilmarth, 7......
  • Great American Acceptance Corp. v. Zwego
    • United States
    • Missouri Court of Appeals
    • July 18, 1995
    ...raised at any time, including on appeal. Rule 55.27(g)(2). Murray v. Ray, 862 S.W.2d 931, 933 (Mo.App.1993), Twin Bridges Constr. Co. v. Ferner, 700 S.W.2d 534, 536 (Mo.App.1985). Therefore, even though the default judgement was entered, and is here affirmed, this does not preclude relief o......
  • Stewart v. Kirkland
    • United States
    • Missouri Court of Appeals
    • September 26, 1996
    ...brief, as required by Rule 84.04(e), the alleged instruction error was not preserved for appellate review. Twin Bridges Const. Co., Inc. v. Ferner, 700 S.W.2d 534, 537 (Mo.App.1985); Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 290 (Mo.App.1980). We proceed then to whether a submissible cas......
  • Evinger v. McDaniel Title Co., WD
    • United States
    • Missouri Court of Appeals
    • March 17, 1987
    ...shall be treated in all respects as if they had been raised in the pleadings. Rule 55.33(b), and see Twin Bridges Construction Co., Inc. v. Ferner, 700 S.W.2d 534, 536 (Mo.App.1985). However, amendments to pleading to conform with the evidence are to be allowed only where the presentation o......
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