Voelpel v. Wuensche

• Decision Date: 12 June 1934
• Docket Number: No. 31176.,31176.
• Citation: 74 S.W.2d 14
• Parties: VOELPEL et al. v. WUENSCHE et al.
• Court: Missouri Supreme Court

74 S.W.2d 14

VOELPEL et al. v. WUENSCHE et al.

No. 31176.

Supreme Court of Missouri, Division No. 1.

June 12, 1934.

Rehearing Denied July 17, 1934.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action in equity by Oliver J. Voelpel and another, copartners, doing business under the firm name and style of the Voelpel Building Company, against Hattie Wuensche and others. From a decree, defendants appeal.

Affirmed.

Murtha J. Hackett and Charles W. Rutledge, both of St. Louis, for appellants.

M. W. Feuerbacher, Arthur J. Freund, and Fred A. Eppenberger, all of St. Louis, for respondents.

HYDE, Commissioner.

This case, coming recently to the writer, is an action in equity under section 3180, R. S. Mo. 1929 (Mo. St. Ann. § 3180, p. 5008), to determine the rights of mechanic's lien claimants and holders of trust deeds in certain real estate in the city of St. Louis. The petition named as defendants all of the original trustees and beneficiaries in the deeds of trust of record against the property and also the unknown owners of any of the notes secured thereby. However, upon trial of this case, when the evidence disclosed that all the mortgages were held either by the Wuensches or Stadlers, plaintiffs dismissed as to all other parties, except them and Annie Schramm. The court found that Hattie Wuensche was the owner of the real estate; that she had acquired all outstanding notes and deeds of trust; that they were therefore merged in her title and were no longer outstanding liens; and adjudged plaintiffs' mechanic's lien to be the prior and superior lien upon the property for the total sum, including interest, of $10,440.84. Defendants, except Annie Schramm, have appealed from this decree.

Plaintiffs' evidence shows that the property in question was formerly a residence, which had been changed into a light housekeeping rooming house, purchased by Hattie Wuensche, then Hattie Spaedy, from Christina Wilson in July, 1923. Mrs. Wuensche executed a first mortgage to Theodore Hemmelmann, trustee for Richard Spackler, to procure a loan of $5,000 from the Hemmelmann-Spackler Real Estate Company. This note was due in three years with interest at 6 per cent., payable semiannually. Although the record does not definitely show, apparently the proceeds of this loan either went to Christina Wilson or paid prior incumbrances on the property. Mrs. Wuensche also gave a second deed of trust to secure payment of $3,000 to Christina Wilson, the principal of which was payable in 30 monthly payments of $100 each with a proportionate part of the interest also payable each month. Mrs. Wuensche said she also paid $500 in cash. At the same time, Mrs. Wuensche executed a deed of trust to John O. Stadler, trustee for Emma Stadler, securing a note of $1,500 due in three years with interest at 6 per cent. payable semiannually. Emma Stadler was Mrs. Wuensche's sister. All three mortgages were dated the same day. The first and second mortgages were recorded July 20, 1923. The third mortgage was recorded December 29, 1923.

In 1924 Mrs. Wuensche, who was at that time still Hattie Spaedy (she married Wuensche in 1927), conveyed the property to her sister Emma Stadler. On May 24, 1926, Emma Stadler and her husband, John Stadler, conveyed the property to their son John O. Stadler. John O. Stadler at that time executed a deed, dated June 2, 1926, conveying the property; but whether Hattie Spaedy was named therein as grantee, or whether the name of the grantee was left blank, is one of the matters in controversy. The deed, however, was finally recorded January 17, 1928, conveying the property to Hattie Spaedy. On June 25, 1926, John O. Stadler executed a deed of trust to William P. Lightholder, trustee for Edmond G. Murray (who they were does not appear), securing a note for $2,500 due three years after date with interest at 8 per cent. Defendants' own claim was that this trust deed was in fact given to Emma Stadler. On September 29, 1927, the building was demolished by a cyclone. Mrs. Wuensche got in touch with plaintiffs through the Hemmelmann-Spackler Real Estate Company, who still held the first mortgage loan, and began to negotiate with them about restoring the building. There was $3,000 tornado insurance, which was finally collected and applied to reduce the principal of the first mortgage to $2,000. This insurance was in the name of John O. Stadler as owner. (His deed to Mrs. Wuensche had not yet been recorded.) To obtain settlement on the insurance policy it was necessary to have a contractor's estimate of the damage. This was made by plaintiff October 8, 1927, and showed the estimated damage to be $8,294. Plaintiffs' evidence was that Mrs. Wuensche told them that she was the owner of the property and was only carrying it in the name of John O. Stadler "for a reason," but said "we intend to have it put back into our name at once."

Thereafter, plaintiffs made a contract with Mr. and Mrs. Wuensche by proposal and acceptance, which was as follows:

                                   "Proposal
                "To Mr. Alvin Wuensche and Wife
                  "5355 Vernon Ave
                "Dear Sir
                

"We propose to furnish all materials and perform all labor necessary to complete the following:

"Complete all of the wrecking, brick work, carpenter work, mill work, stair work, plastering, painting, glazing, plumbing, furnace work, sheet metal work, slate roofing, composition roofing, hardware and interior decorating, also any other work that may be ordered or required necessary to repair and restore your building, garage and fences at 4214 Westminster Place, City.

"All of the above work to be completed in a substantial and workmanlike manner at the actual cost of all materials and labor, plus Fifteen per cent (15%) for contractor's overhead expense, liability, insurance and profit.

"Payment to be made semi-monthly as the work progresses to the value of Eighty-Five per cent (85%) of all work completed. The entire amount of contract to be paid within 30 days after completion.

                    "Respectfully submitted
                               "Voelpel Building Company
                                   "By O. J. Voelpel.
                               "Acceptance
                

"You are hereby authorized to furnish all materials and labor required to complete the work mentioned in the above proposal, for which we agree to pay the amount mentioned in said proposal, and according to the terms thereof.

                   "Accepted:
                   "Date, Oct. 20, 1927.
                                     "Alvin Wuensche,
                                     "Mrs. Hattie Wuensche."
                

Plaintiffs commenced at once to rebuild the building and in doing so carried out architect's plans, drawn for rearrangement of the apartments, which were approved by Mrs. Wuensche. They completed the building February 18, 1928, and presented an account for the total amount due of $9,000.55. When this was not paid, they filed mechanic's lien. Some of the subcontractors also filed liens and thereafter this suit was brought. The matters between the plaintiffs and the subcontractors have been settled and are not in issue here. Plaintiffs said that they never made demands for monthly payments, upon estimates provided for by contract, because during the cyclone period they had four or five other jobs and "didn't get time to make up our statements as we should have; let them run along, being as they came recommended as good people by Mr. Spackler."

Defendants now seek to argue that the bill was too much. However, their attorney in the trial of the case said he could not dispute the account and did not want to go into that. There can therefore be no question of the accuracy of the account both for that reason and because there is no evidence of its inaccuracy in any particular. It was shown that Mrs. Wuensche consulted with the plaintiffs and the subcontractors during the construction of the building, was frequently on the premises during the progress of the work, went over and approved the architect's drawings, selected the paper, and otherwise had charge of all matters in connection with the work. None of the Stadlers were shown to have taken any part in any of these matters.

In January, 1928, about a month before the building was completed, Mrs. Wuensche went to the office of L. H. Williams, a real estate man. She brought him the second, third, and fourth deeds of trust and the warranty deed from John O. Stadler. Her evidence was that she had paid ten of the monthly payments on the Christina Wilson second mortgage and that her sister Anna Stadler had bought the remainder of the notes. Williams, however, testified that she told him she was the owner of all of the trust deeds and was also the owner of the property. He said that she wanted him to foreclose under the trust deeds. He advised her that she "couldn't foreclose on her own property, she would have to transfer the property, and I advised her to transfer the property to somebody else. Then she could foreclose on the property. * * * We drew a deed to a straw party, Alcie Hook. * * * Then we proceeded to foreclose on the property, and then she changed her mind. She told me she didn't want it foreclosed." Later, a deed was made by Alcie Hook to Annie Schramm, a sister-in-law of Mrs. Wuensche who lived in Denver, Colo. Whether this was before or after the foreclosure was advertised does not clearly appear, but it was done before plaintiffs' lien was filed. After this suit was commenced, the balance of the first mortgage note and interest was paid to the Hemmelmann-Spackler Real Estate Company. The version of this transaction given by Mrs. Wuensche and Mrs. Stadler is hereinafter stated.

Mr. and Mrs. Wuensche and John O. Stadler were the only witnesses for defendants. Mrs. Wuensche, although claiming that John O. Stadler was the owner of the property and that Emma Stadler was the owner of all of the mortgages, said that she "attended to all of his affairs"; that "he was there and saw the building was being constructed"; that "he wasn't much in favor of it"; and that "he never...