Ward v. Nolde

• Decision Date: 23 June 1914
• Parties: EDWARD WARD v. JOHN T. NOLDE and JOHN O'F. DELANY; JOHN O'F. DELANY, Appellant
• Court: Missouri Supreme Court

168 S.W. 596

259 Mo. 285

EDWARD WARD v. JOHN T. NOLDE and JOHN O'F. DELANY; JOHN O'F. DELANY, Appellant

Supreme Court of Missouri, Second Division

June 23, 1914

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed (conditionally).

T. K Skinker for appellant.

(1) The court erred in adjudging a lien against the fee simple estate of defendant Delany. The plaintiff's contract having been made with a lessee, his remedy is against the lessee only. R S. 1909, sec. 8216; Rothe v. Bellingrath, 71 Ala. 55; Deatherage v. Sheidley, 50 Mo.App. 496; Koenig v. Mueller, 39 Mo. 165; Pinkerton v. LeBeau, 3 S.D. 440. (2) The court erred in holding that Nolde was agent of Delany within the meaning of section 8212 and that the work was done for the immediate use, enjoyment and benefit of Delany, so as to make his reversionary interest in the premises liable to a lien. R. S. 1909, secs. 8212, 8234; Winslow v. Stone Co., 169 Mo. 244; Marble & Granite Co. v. Handlan, 85 Mo.App. 313; Wilson v. Lubke, 176 Mo. 210; 20 Am. & Eng. Ency. Law (2 Ed.), 319; Albaugh v. Decorating Co., 14 App. Cas. (D. C.) 113; Lumber Co. v. Morris, 170 Mo.App. 212; Francis v. Sayles, 101 Mass. 435; Block v. Murray, 12 Mont. 545; Cornell v. Barney, 94 N.Y. 394; Morrow v. Merritt, 16 Utah 410; Conant v. Brackett, 112 Mass. 18; Reed v. Estes, 113 Tenn. 200; Beehler v. Ijams, 72 Md. 193; Weathers v. Cox, 159 N.C. 575; Poole v. Fellows, 25 R. I. 64; Gates v. Fredericks, 5 Ariz. 343; Steuberg v. Lienneman, 20 Mont. 457; Meek v. Parker, 63 Ark. 372; Moore v. Vaughn, 42 Neb. 696; Plumbing Co. v. Irwin, 77 Neb. 385; Schrage v. Miller, 44 Neb. 818; Johnson v. Dewey, 36 Cal. 623; Waterman v. Stout, 38 Neb. 396; Boisot on Mechanics Liens, sec. 289, note 135, sec. 291; Pelton v. Construction Co., 11 Mont. 281; Lumber Co. v. Nelson, 71 Mo.App. 110; Hardware Co. v. Churchill, 126 Mo.App. 462; Lumber Co. v. Churchill, 114 Mo.App. 578; McGuinn v. Mines Co., 160 Mo.App. 28; Seaman v. Paddock, 51 Mo.App. 465; Kline v. Perry, 51 Mo.App. 422; Marble Co. v. Bauman, 44 Mo.App. 392; VanRiper v. Martin, 61 Mo.App. 440; Otis v. Dodd, 90 N.Y. 336; Burkett v. Harper, 79 N.Y. 273; Knapp v. Brown, 45 N.Y. 207; Muldoon v. Pitt, 54 N.Y. 269; Deardorff v. Eberhartt, 70 Mo. 37. (3) The court erred in awarding plaintiff a lien against the fee simple interest of Delany for extra work, because Delany did not authorize it to be done, either by the lease or otherwise. (4) Ward knew when he made his contract with Nolde that the lease contemplated that the alterations should be made at Nolde's expense and without liability on the part of Delany on his land. The court erred in refusing to hold that this barred Ward of any right to enforce a lien. Mills v. Matthews, 7 Md. 315; Waterman v. Stout, 38 Neb. 396; Schroeder v. Galland, 134 Pa. 237; Boisot on Mechanics Liens, sec. 133; Williams v. Vanderbilt, 145 Ill. 238; McClintock v. Criswell, 67 Pa. 183; Taylor v. Murphy, 148 Pa. 337; Given v. Church, 15 Phila. 300. (5) Ward signed a bond for $ 40,000 to protect against liens, and this bond by his consent was assigned to Delany. The court erred in refusing to hold that this also is a bar to a claim by Ward for mechanic's lien. Wilson v. Davidson Co., 310 Tenn. Chan. 536; Gray v. Jones, 47 Ore. 40; Fidelity Assn. v. Jackson, 163 Pa. 208; Handley v. Ward, 70 Mo.App. 146; Lumber Co. v. Stoddard Co., 141 Mo.App. 15; Spears v. Lawrence, 10 Wash. 368; Pinning v. Skipper, 71 Md. 347; Gannon v. Church, 173 Pa. 242; Commonwealth Co. v. Ellis, 192 Pa. 321; Haine v. Dambach, 4 Pa. Co. Ct. 633; Benedict v. Hood, 134 Pa. 289; Closson v. Billman, 161 Ind. 610; McHenry v. Knickerbocker, 128 Ind. 77; Miller v. Taggart, 36 Ind.App. 595; Aikens v. Frank, 21 Mont. 192. (6) The court erred in refusing to reform the $ 40,000 bond assigned by Nolde to Delany, and in refusing to enter judgment in favor of Delany and against Ward on this bond. Lumber Co. v. Clark, 172 Mo. 588; Lumber Co. v. Gates, 89 Mo.App. 201.

M. C. Early and Edw. C. Kehr for respondent.

(1) The mechanic's lien law is purely statutory. The doctrine is fundamental in this State that it is highly remedial in its nature and should be liberally construed to give effect to its beneficent purposes. DeWard v. Smith, 63 Mo. 263; Dugan Co. v. Gray, 114 Mo. 497; Sash & Door Works v. Shade, 137 Mo.App. 23. (2) By the lease and facts in evidence appellant Delany's interest in the premises is charged with Ward's lien. The building was remodeled and reconstructed through Nolde for the immediate use, enjoyment and benefit of Delany. R. S. 1909, secs. 8212, 8214, 8216 and 8234; Winslow Bros. Co. v. Stone Co., 169 Mo. 236; O'Leary v. Roe, 45 Mo.App. 567; Lumber Co. v. Nelson & Haydel, 71 Mo.App. 110; Dougherty Co. v. Churchill, 114 Mo.App. 578; Hardware Co. v. Churchill, 126 Mo.App. 462; Lumber Co. v. Harris, 131 Mo.App. 94; McQuinn v. Federated M. & M. Co., 160 Mo.App. 28; Lumber Co. v. Morris, 170 Mo.App. 212; Lumber Co. v. Jones, 187 Ill. 203; Crandell v. Sorg, 198 Ill. 62; Harte v. Shukert, 142 N.W. 517. (3) The report of the referee is equivalent to a special verdict and where there is evidence to establish the facts and the referees' findings have been approved and confirmed by the circuit court, they will not be disturbed. Ferry Co. v. Railroad, 73 Mo. 389; Berthold v. O'Hara, 121 Mo. 97; Bank v. Donnell, 172 Mo. 402; State ex rel. v. Guaranty Co., 236 Mo. 375. (4) The items called extra work by appellant Delany are part of the improvements which the lease required Nolde to make. They were ordered by Nolde and Matthews, the architect, and were approved by both of them. They are included in the stipulation of the parties fixing the items and amount of Ward's demand. The referee found that they are properly a part of respondent's lien claim. (5) Under the law of this State Ward has a lien for work done and material furnished for Delany's house under Nolde's lease. The fact that Ward knew that Nolde, as between himself and Delany, was to pay for the improvements cannot bar him from enforcing his lien. The authorities cited under point 2 of this brief show that he has such right. (6) The $ 40,000 bond given to Nolde to protect him against the result of accidents, in the course of the reconstruction of the building, is limited to liens growing out of such accidents. The bond in nowise bars Ward from enforcing his lien against the building. The lien is given by law and cannot be considered waived unless the intention to waive is clearly manifested. Lee v. Hassett, 39 Mo.App. 71; Lumber Co. v. Hoose, 67 Mo.App. 274; Nice v. Walker, 153 Pa. St. 123; Evans v. Grogan, 153 Pa. St. 121; Iron Works v. O'Brien, 157 Pa. St. 174.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

This is a suit to establish a mechanic's lien against a certain tract of ground and building, located at the southwest corner of Tenth and Locust streets, in the city of St. Louis, Missouri. Appellant Delany is the fee simple owner of the real estate sought to be subjected to the mechanic's lien. In 1907, appellant Delany executed to defendant Nolde a twenty year lease on the five-story brick building located on said premises and provided in said lease that Nolde should make and construct certain substantial alterations and improvements in said building. That portion of the lease applicable to the issues here was as follows:

"Said party of the second part agrees to pay as rental therefor for a term of 20 years, to commence on the first day of January, 1908, the sum of $ 20,000 net per year for the first ten years and $ 24,000 net per year for the remaining ten years of said term, payable in gold coin of the United States of America of the present standard of weight and fineness, or at the option of the lessor, its equivalent, in equal quarterly installments in advance on the first day of January, April, July and October, of each and every year during said term of 20 years. As additional rent for said premises, the lessee is to pay all taxes both general and special, for the year 1908 and thereafter, which may be levied, assessed or imposed against said property during the term of this lease. Lessee shall and will deliver to lessor his bond to the amount of $ 20,000 in the Banker's Surety Company, of Cleveland, Ohio, to be held by lessor as security to guarantee to said lessor a performance by said lessee of all the covenants and conditions herein contained, to remain until the alterations, additions and all changes in first floor and all other parts of building shall be completed, and that the sum of $ 20,000 shall be expended for such alterations, additions, and changes to the satisfaction of the party of the first part; and said lessee, not being in default in performance of any of the conditions and covenants of this lease, said bond shall be returned to said lessee. In case said Banker's Surety Company should fail or go out of business for any reason, the lessee shall furnish an additional bond to take place of said Banker's Surety Company bond, and said bond shall be satisfactory to lessor, and additional bond shall be furnished lessor for the amount above agreed upon. Lessee shall submit plans, drawings and specifications for alterations, additions and changes in building to lessor, for his approval, on or before January 1, 1908, and said alterations, additions and changes, must be satisfactory to lessor. Lessee shall, within ten days from the first day of January, 1908, begin and continue the alterations, additions and changes, in said building, until it is complete, and the sum of $ 20,000 is expended and paid out for said work.

"On or before January 1, 1908, and before commencing removal of stone, brick and steel columns, now supporting building on first floor, for the purpose of...