Vasquez v. Village Center, Inc., 49448

• Decision Date: 11 December 1962
• Docket Number: No. 1,No. 49448,49448,1
• Citation: 362 S.W.2d 588
• Parties: L. VASQUEZ, Plaintiff-Respondent, v. VILLAGE CENTER, INC., Defendant, John Dooly, Defendant-Appellant
• Court: Missouri Supreme Court

Page 588

362 S.W.2d 588

L. VASQUEZ, Plaintiff-Respondent, v. VILLAGE CENTER, INC., Defendant, John Dooly, Defendant-Appellant.

No. 49448.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1962.

Walter S. Berkman, St. Louis, for John Dooly, co-defendant-appellant.

Boyle, Priest, Elliott & Weakley, Howard Elliott, Edward D. Weakley, St. Louis, for Leo Vasquez, respondent.

COIL, Commissioner.

Respondent, L. Vasquez, the plaintiff below, an excavating and grading contractor, brought an action against Village center, Inc., for $12,606.12 and interest thereon, the balance due for labor performed allegedly at the special instance and request of Village Center, and to have real estate owned by appellant John Dooly impressed with a mechanic's lien for the amount of such judgment. The jury returned a verdict, including interest, for $16,271.91, and found that the plaintiff had perfected and established the right to a mechanic's lien against the realty. Dooly alone has appealed and contends that the judgment impressing his property with a mechanic's lien was void because the trial court was without jurisdiction, erred in failing to direct a verdict for him, and erred in giving instructions on behalf of plaintiff.

All the evidence in the case was adduced by plaintiff and we state it from a standpoint favorable to him. Edward Bilhorn testified that he and his brother-in-law, James J. Nicholson, and Terry Nicholson, from 1953 until sometime in 1956, constituted the officers and directors and owners of all the stock of Nicholson & Bilhorn, Inc., a corporation which was engaged in real estate development and that, beginning in 1954, that company was engaged in developing about 200 acres of land in the vicinity of Manchester and New and Old Ballwin Roads in St. Louis County involving approximately 500 homesites in various sections of an area known as Ballwin Hills. Those homesites were developed (construction began in 1954) by a subsidiary corporation of Nicholson & Bilhorn, Inc., viz., Suburban Homes, Inc. A plot of ground fronting approximately 1,300 feet on the south side of Manchester Road and running southwardly for approximately 300 feet was to be developed as a commercial tract (a shopping center) by another subsidiary corporation of Nicholson & Bilhorn, Inc., to be known as Village Center, Inc., to be owned and operated by the same three individuals, i. e., the two Nicholsons and Edward Bilhorn.

All of the land, including the homesites and the commercial property, was acquired under one purchase contract and record title was taken in the names of James Nicholson and his wife and, at some later time (the exact date was not shown), all of the land was deeded by James Nicholson and his wife to Nicholson & Bilhorn, Inc. The plaintiff did grading and excavating in connection with the development of the residential homesites during 1954, 1955, and 1956.

Mr. Bilhorn, on behalf of Village Center, Inc. (Village Center, Inc. had not then been incorporated, a matter to which we shall later refer), ordered plans for the development of the tract from an architect. Those plans, dated February 20, 1955, purported to show a floor plan for buildings and facilities, including a parking area for the proposed shopping center. According to the testimony of both the plaintiff and Edward Bilhorn, in April or May of 1955 Mr. Vasquez attended a conference on the proposed commercial site. Present also were Edward Bilhorn, James Nicholson, and Terry Nicholson, and probably the construction superintendent for Nicholson & Bilhorn, Inc. The plans, including a sketch which showed the elevations for the proposed buildings, were displayed to Mr. Vasquez and the work that it was desired that he perform was explained to him. The land in question was rough, there was a large creek meandering through it, there was a steep hill on the southwest corner, some low and swampy parts in the center and there were some places where the land adjoining Manchester Road was six feet below the level of that road. Plaintiff was told that he was to realign the creek, prepare the ground for parking lots, prepare subgrades for the planned buildings and provide access to the shopping center along the frontage on Manchester. The rates were agreed upon in detail providing for hourly rates for the use of various types of equipment. Mr. Vasquez was employed on behalf of Village Center, Inc., the corporation which was planned as a subsidiary of Nicholson & Bilhorn, Inc., to develop the commercial tract.

Plaintiff proceeded to do the work as directed during the remainder of 1955 and in 1956, completing the job on August 21. He worked under the control and direction of Edward Bilhorn and performed the work agreed upon. The total charges figured at the stipulated rates amounted to $15,606.12. In December 1955, a $3,000 payment was made by a check of Nicholson & Bilhorn, Inc., leaving a balance due of $12,606.12.

Mr. Bilhorn testified that Vasquez was the general contractor and, according to the evidence, plaintiff was the only contractor involved in any work on the land in question prior to the time it was conveyed to Mr. Dooly on December 10, 1956. No buildings had been constructed on the property by the time it was conveyed to Dooly.

In August 1955 the corporation, Village Center, Inc., was formed as theretofore planned by James and Terry Nicholson and Edward Bilhorn. They were the officers and directors, owned all the stock, and conducted its business in accordance with the plan which existed at the time title to the property was taken in the names of James Nicholson and his wife. The commercial site in question was conveyed to Village Center, Inc., on April 2, 1956. Plaintiff understood that the work he performed on the commercial tract in 1955 and 1956 was on a separate project and that the work was to be done for Village Center, Inc. Mr. Vasquez did not know Mr. Dooly and had had no dealings with him.

Appellant Dooly contends that the judgment impressing his land with a mechanic's lien is void because, he says, the court was without jurisdiction of the case inasmuch as the parties to the contract were not made parties to the action as required by statute.

Section 429.190 ¹ mandatorily requires that the parties to the contract be made parties to a mechanic's lien action. Harrison v. Creason, Mo.App., 238 Mo.App. 118, 176 S.W.2d 849; Hughes Bros. Paint & Hardware Co. v. Prewitt, 170 Mo.App. 594, 157 S.W. 120, 121[3, 4]; Simon Devine Welding Co. v. Kuhn, Mo.App., 329 S.W.2d 249, 252[1-3]. The contract referred to in the statute is the agreement made for the performance of the work or for the furnishing of materials. Harrison v. Creason, supra, 176 S.W.2d 850[1-2]; Foster v. Wulfing, 20 Mo.App. 85, 87.

Appellant argues that the evidence shows that the contract to do the work was made with James Nicholson, Terry Nicholson, and Edward Bilhorn, and that the property was then owned either by James Nicholson and his wife or Nicholson & Bilhorn, Inc. And he points out that Village Center was not in existence at the time the arrangement was made for plaintiff to do the work and that the land was not conveyed to Village Center, Inc., until April 1956. Therefore, says appellant, since neither Bilhorn and the two Nicholsons, nor James Nicholson and his wife, nor Nicholson & Bilhorn, Inc., were made parties to the suit, the court was without jurisdiction over the subject matter and the judgment was void.

We are unable to agree with appellant's contention. We are of the view that, for the reasons which will appear, Village Center was the only 'party to the contract' which the statute required be made a party to this action.

While it is true that one who seeks to avail himself of the benefits of the mechanic's lien law must substantially comply with the provisions of the applicable statutes, Wadsworth Homes, Inc. v. Woodridge, Mo.App., 358 S.W.2d 288, 291, nevertheless, the purpose of the mechanic's lien law is to give security to mechanics and materialmen for labor and materials furnished and it should be construed as favorably to those persons as its terms will permit. Ladue Contracting Co. v. Land Development Co., Mo.App., 337 S.W.2d 578, 584. An examination of some of the early cases will disclose that the purpose to be accomplished by the mandatory requirement of the statute that the parties to the contract be made parties to the lien action is to provide a party against whom a personal judgment will lie (the lien, of course, being only an incident to a personal judgment) and a party who is in a position to defend the claim forming the basis for the personal judgment sought, and thus the basis for the establishment of the mechanic's lien. Crane Co. v. Hanley, 53 Mo.App. 540; Steinmann v. Strimple, 29 Mo.App. 478, 482, 483; Russell v. Grant, 122 Mo. 161, 26 S.W. 958, 962; Steinkamper v. McManus, 26 Mo.App. 51, 52; Foster v. Wulfing, supra. Some of the foregoing cases and others, while recognizing that the statute's requirement that the parties to the contract be made parties to the lien action is mandatory, hold that there is substantial and sufficient compliance with the statute if one of the parties to a contract under which one did work or furnished materials is before the court even though there may have been other parties to that contract who were not made parties to the action. Steinmann v. Strimple, supra, 29 Mo.App. 484, 485; Hassett v. Rust, 64 Mo. 325, 327; Foster v. Wulfing, supra. Furthermore, it was pointed out in an early case that if the owner of the property against which the lien is sought desires that other persons be made parties to the action, he may, upon a proper showing, have those parties made defendants. Putnam v. Ross, 55 Mo. 116, 118.

It is true, of course, that Village Center, Inc., not having come into existence as a legal entity until some three months after plaintiff's contract was made, was not and could not have been a party to...