Watkins v. Mayer

• Decision Date: 06 April 1937
• Docket Number: No. 23726.,23726.
• Citation: 103 S.W.2d 569
• Parties: WATKINS v. MAYER et al.
• Court: Missouri Court of Appeals

103 S.W.2d 569

WATKINS v. MAYER et al.

No. 23726.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Rehearing Denied April 20, 1937.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by James B. Watkins against Herman Mayer and others. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Dunbar & Dubail and Bryan Wilson, all of St. Louis, for appellants.

John V. Lee, of St. Louis, for respondent.

BECKER, Judge.

This is an action to enforce a mechanic's lien upon premises in the city of St. Louis, Mo., known as 5460 Robert avenue.

Plaintiff's petition alleges that the defendant Herman Mayer was the owner of said lot, and that plaintiff furnished certain labor and materials under a contract with Herman Mayer Company, a corporation, general contractor, for the erection of a building thereon, for the agreed sum of $731.

The legal existence of Herman Mayer Company as a corporation at the time the suit was filed, among other things, was denied and urged under section 774, Rev. St. of Mo. 1929 (Mo.St.Ann. § 774, p. 1010) as a defect of parties defendant, by verified answer on the part of each of the defendants. The reply was a general denial.

At the trial, in support of their contention that there was a defect of parties defendant, evidence offered by defendants to prove that the charter of the defendant company, Herman Mayer Company, a corporation, general contractor, had been forfeited on January 1, 1931, under section 4619, Rev.St. of Mo. 1929 (Mo.St.Ann. § 4619, p. 2049), which was prior to the date of the filing of this action, was refused and an exception to such refusal duly saved. A verdict resulted in favor of plaintiff and against the defendant Herman Mayer Company, a corporation, with a lien against the property in question with priority over existing deeds of trust. The alleged error in rejecting said evidence was duly preserved in a motion for new trial and is now urged here on appeal as an assignment of error.

Plaintiff is a subcontractor seeking to establish a mechanic's lien upon property prior to the liens of the deeds of trust thereon, in which situation, under section 3165, Rev.St. of Mo. 1929 (Mo.St.Ann. § 3165, p. 4996) the original contractor is a necessary party to the action, and a valid judgment against such original contractor is a prerequisite to the establishment of a mechanic's lien. Wibbing v. Powers, 25 Mo. 599; Reese v. Cibulka (Mo.App.) 68 S.W. (2d) 902.

As was pointed out, plaintiff's petition to enforce the mechanic's lien upon the premises in question alleges that Herman Mayer was the owner of the property and that plaintiff "at the special instance and request of, and under contract with said Herman Mayer Company, a corporation, general contractor, with the owner, partly oral and partly in writing, for the erection of said building and improvements, furnished labor and materials actually used in the construction of said building improvements." The petition also contains the allegation that said defendant "Herman Mayer Company is, and was at the times hereinafter mentioned, a corporation organized and existing according to law, engaged in the construction business, with its principal office and place of business in the city of St. Louis, State of Missouri."

But if, as set up in defendants' answer, the general contractor, the said Herman Mayer Company, a corporation, with whom the contract for the labor and materials was made, had at the date upon which plaintiff filed his suit been suspended as a corporation under section 4619, Rev.St. of Mo. 1929 (Mo.St.Ann. § 4619, p. 2049), then the officers and directors of said company, at the time of such suspension under section 4622, Rev.St. of Mo. 1929 (Mo.St.Ann. § 4622, p. 2051), became the statutory trustees for such suspended corporation.

Section 4619, Rev.St. of Mo. 1929 (Mo.St. Ann. § 4619, p. 2049), provides: "If any corporation shall fail to comply with the provisions of this article, on or before the thirty-first day of December, the corporate rights and privileges of such corporation shall be forfeited, and the secretary of state shall thereupon cancel the certificate, or license, of such corporation by appropriate entry on the margin of the record thereof, whereupon all the powers, privileges and franchises conferred upon such corporation by such certificate, or license, shall subject to rescission as in this article provided, cease and determine, and the secretary of state shall notify such corporation by mail, addressed to its postoffice address, as disclosed by the records of his office, that its corporate existence and rights in this state have been forfeited and canceled, and the corporation dissolved, subject to rescission as in this article provided."

Section 4622, Rev.St. of Mo. 1929 (Mo. St.Ann. § 4622, p. 2051) provides that in the event of the forfeiture of the charter of a corporation under section 4619, supra, then the officers and directors of such company, at the time of such suspension, shall become the statutory trustees for such suspended corporation with full power to settle its affairs and disburse its assets among its stockholders, after paying the debts due and owing by said corporation; and as such trustees to sue to recover debts and property due said corporation, and that such statutory trustees become "jointly and severally responsible" to the creditors and stockholders of such corporation to the extent of its property and assets that may properly come into their hands.

"It is difficult to read the provisions of the statute without arriving at the conclusion that it was the intention of the Legislature that the act of the secretary of state should operate as a dissolution of the corporation, leaving it without corporate existence or corporate rights, privileges, franchises, or powers,...