Westinghouse Elec. Co. v. Vann Realty Co.

• Decision Date: 24 July 1978
• Docket Number: No. 59858,REEVES-WIEDEMAN,59858
• Citation: 568 S.W.2d 777
• Parties: WESTINGHOUSE ELECTRIC COMPANY v. VANN REALTY CO. et al.CO. et al. v. APPLEWOOD AT THE COVES CORPORATION et al. IOWA SECURITIES COMPANY, now Banco Mortgage Company, Appellant, v. TRUOG NICHOLS, INC., Respondent.
• Court: Missouri Supreme Court

Page 777

568 S.W.2d 777

WESTINGHOUSE ELECTRIC COMPANY v. VANN REALTY CO. et al.

REEVES-WIEDEMAN CO. et al. v. APPLEWOOD AT THE COVES CORPORATION et al.

IOWA SECURITIES COMPANY, now Banco Mortgage Company, Appellant, v. TRUOG NICHOLS, INC., Respondent.

No. 59858.

Supreme Court of Missouri, En Banc.

July 24, 1978.

Lawrence D. Blume, Milton C. Clarke, Kansas City, for appellant.

James P. Jouras, Tucker, Charno, Willens, Jouras & Tucker, Kansas City, for respondent.

FINCH, Judge.

On May 21, 1973, Applewood at the Coves Corporation (Applewood) purchased land on which to construct multi-unit apartment buildings. Concurrently, it executed a first deed of trust to a trustee for a firm later known as Banco Mortgage Company (Banco) to secure a loan evidenced by a note for $2,150,000. $177,000 of the amount represented by the note was to be and, in fact, was used to purchase the land. The remainder of the loan was to be used for construction of the apartment buildings. This deed of trust was recorded May 22, 1973.

On May 30, 1973, Truog Nichols, Inc. (Truog) entered into a contract with the general contractor on the job, Vann Realty Company (Vann), to furnish and install heating and air conditioning units in the apartments. It commenced work and from time to time received payments totaling $121,254.10 against its total contract price plus extras of $134,682.10. The work was completed but Applewood experienced financial difficulties and a balance of $13,428 due Truog was not paid. On February 22, 1975, Truog filed notice of intention to file a mechanic's lien therefor and on March 10, 1975, its lien statement was filed.

Subsequently, this equitable mechanic's lien action was instituted pursuant to § 429.270 ¹ to determine rights as between mechanic's lien claimants, holders of other liens and the leasehold owners. Truog, named as one of the defendants, cross-claimed against Vann to recover the balance allegedly due. It also sought to establish a mechanic's lien in the amount of the judgment and an adjudication that the lien enjoyed priority over the deed of trust given by Applewood to Banco.

The trial court entered judgment for Truog against Vann for $13,428, established a mechanic's lien therefor on the land and improvements and adjudged the lien prior to the deed of trust held by Banco. Only Banco appealed. We have jurisdiction because one of the defenses asserted by Banco involves the question of whether §§ 429.050 and 429.060, which provide for the priority granted to Truog's lien, are unconstitutional as violative of the due process clauses of the fourteenth amendment of the United States Constitution and Article I, § 10, of the Missouri Constitution.

The threshold question presented is whether Truog filed its lien statement within four months after the indebtedness accrued as required of subcontractors by § 429.080. Whether it did depends on whether Truog in performing its contract did its last work on the project within four months of the date on which the lien statement was filed.

Truog offered evidence that after the air conditioning units were installed and after they were hooked up by the electrical contractor, it was necessary to charge the units with freon and perform a procedure referred to as "check, test and start" and that the air conditioning system could not be considered operational until these things were done. There was evidence that the last "check, test and start" work by Truog was done on November 22, 1974, which was within 4 months of the time Truog filed its lien claim. Banco offered evidence which would have supported a finding that Truog's installation work was completed by sometime in September 1974, more than four months before the lien statement was filed, and contends that the "check, test and start" work performed after that time was either non-lienable work because not required by the contract or, if required, De minimus and insufficient to extend the filing date.

The trial court, by its decree, found the issues in favor of Truog, entering a judgment against Vann for $13,428 and holding that Truog was entitled to a mechanic's lien for said sum against the real estate and improvements thereon. The court was not requested to make and did not make findings of fact and conclusions of law. However, it is presumed to have made findings in accordance with the decree it entered. Rule 73.01(1)(b), V.A.M.R.; Collins v. Bowyer, 524 S.W.2d 190 (Mo.App.1975). That necessarily includes a finding that the "check, test and start" work was necessary to completion of the contract and that the lien statement was filed within the time required by § 429.080. Under the rule announced in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), we do not disturb that finding as to timeliness of filing because there is substantial evidence to support it and it is not against the weight of the evidence. It does not erroneously apply the law.

The only Missouri case cited by Banco to support its contention that the court erred in finding the lien statement was timely filed is Floreth v. McReynolds, 205 Mo.App. 143, 244 S.W. 995 (1920). That case clearly is distinguishable because the system installed by the contractor therein was fully operational a year before he returned to the job to charge the batteries, hook up a drain pipe and instruct the owner on operation of the system. Likewise, in the out-of-state cases cited by Banco, the work relied on to extend the period for filing a lien statement consisted of adjusting or servicing a unit already fully operational. Those cases do not apply to the situation in this case wherein the work relied upon to extend the time for filing a lien claim was necessary to complete the job and make the system operational. We overrule Banco's claim that Truog's lien statement was not filed within the time permitted by § 429.080.

Banco's principal contention is that the trial court erred in adjudging Truog's mechanic's lien superior to the deed of trust held by Banco for the reason that §§ 429.050 and 429.060 which...