Winslow Brothers Company v. McCully Stone Mason Company

• Decision Date: 18 June 1902
• Citation: 69 S.W. 304,169 Mo. 236
• Parties: WINSLOW BROTHERS COMPANY v. McCULLY STONE MASON COMPANY et al., Appellants
• Court: Missouri Supreme Court

69 S.W. 304

169 Mo. 236

WINSLOW BROTHERS COMPANY v. McCULLY STONE MASON COMPANY et al., Appellants

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

Collins Jamison & Chappell for appellants.

(1) The court erred in giving the instructions asked by plaintiff and in refusing and modifying instructions asked by the appellants. R. S. 1899, sec. 4203; Squires v. Fithian, 27 Mo. 134; Porter v. Tooke, 35 Mo. 107; Bridewell v. Clark, 39 Mo. 170; Crandall v. Cooper, 62 Mo. 478; Schulenburg v. Hayden, 146 Mo. 583; Kline v. Perry, 51 Mo.App. 422; Garnett v. Berry, 3 Mo.App. 197; Hughes v. Anslyn, 7 Mo.App. 400; Planing Mill v. Brundage, 25 Mo.App. 268; Carthage v. Bauman, 44 Mo.App. 386; Barker v. Berry, 8 Mo.App. 446; R. S. 1899, sec. 4206. (2) The trial court erred in refusing to nonsuit the plaintiff at the close of plaintiff's evidence. Authorities under point 1. (3) There was no evidence in the case of any contractual relation existing as between the Van Raalte Investment Company and the contractor or the subcontractor, and, therefore, plaintiff was not entitled to a lien against the fee. Authorities cited under point 1.

Seneca N. & S. C. Taylor for respondent.

(1) Mechanic's liens are remedial, and should be liberally construed to protect contractors and materialmen. Hicks v. Scofield, 121 Mo. 381; Walden v. Robertson, 120 Mo. 38; Stone Co. v. Gray, 114 Mo. 497; Dewitt v. Smith, 63 Mo. 263; Supply Co. v. Light and Power Co., 75 Mo.App. 622; Construction Co. v. Jones, 60 Mo.App. 1; Rall Bros. v. McCrary, 45 Mo.App. 365; McAdow v. Sturtevant, 41 Mo.App. 220; Bruns v. Braun, 35 Mo.App. 337; Hayden v. Wulfing, 19 Mo.App. 356. (2) Under section 4203, Revised Statutes 1899, the right to a mechanic's lien is given to every subcontractor who furnishes material for, and which is used in the construction of, any building, by virtue of any contract with the owner, or proprietor, or his agent, trustee or subcontractor upon complying with the provisions of the statute. Where it is manifest that the building was erected for the immediate use, enjoyment or benefit of a particular person, that person, within the meaning of the statute concerning mechanic's liens, is to be regarded as the "owner or proprietor thereof." Burgwald v. Weippert, 49 Mo. 60; Marble & White Lime Co. v. Bauman, 44 Mo.App. 386; Collins v. Megraw, 47 Mo. 495; Mfg. Co. v. Gapen, 22 Mo.App. 397; O'Leary v. Roe, 45 Mo.App. 567; Price v. Merritt, 55 Mo.App. 640. (3) An agency may be created by the express words or acts of the principal, or may be implied from his conduct and acquiescence, so the nature and extent of the authority of the agent may be implied or inferred from circumstances. Cummings v. Hurd, 49 Mo.App. 145; Weber v. Collins, 139 Mo. 508; Briggs v. Munchon, 56 Mo. 472; Higgins v. Senior, 8 M. & W. 844; Higgins v. Dillingham, 22 Mo. 399; Hull v. Jones, 69 Mo. 587; Kuenzel v. Stevens, 155 Mo. 280; Mechem on Agency, secs. 106, 148; McNichols v. Nelson, 45 Mo.App. 446. (4) Where the building is erected and the materials are furnished under a contract authorized by the lessor and for its use, its title and interest in the land becomes subject to the mechanic's lien for such material. O'Leary v. Roe, 45 Mo.App. 572; Lumber Co. v. Nelson, 71 Mo.App. 118; Kerkley v. Wainwright, 86 Pa. St. 191; Hall v. Parker, 94 Pa. St. 109; Henderson v. Connelly, 123 Ill. 98; Hill v. Gill, 40 Minn. 441; Hacker v. Badow, 63 N.Y. 476; Berket v. Harper, 79 N.Y. 273; Hildon v. Merrill, 106 Mass. 528; Smith v. Norris, 120 Mass. 58; Lumber Co. v. Jones, 187 Ill. 210; Paper Co. v. Lire, 163 N.Y. 129. What is implied in a statute or contract is as much a part of it as what is expressed. Chouteau v. Railroad, 122 Mo. 389; United States v. Babbitt, 1 Black 55; Gelcke v. Dubuque, 1 Wall. 220; Bishop on Contracts (Enlarged Ed.), 241, 253 and 439.

OPINION

MARSHALL, J.

This is a subcontractor's mechanic's lien suit to establish a lien on a lot on the corner of Fifteenth and Olive streets, in St. Louis. There was a verdict and judgment for the plaintiff, and the defendants appealed.

Briefly stated the facts are these:

On April 16, 1898, the Van Raalte Investment Company owned the said lot, on which there was a partially erected building, that is, the foundations and the walls up to the second story were built. This company had a capital stock of fifty thousand dollars, which was held as follows: Simon Van Raalte and Julius Van Raalte, two hundred and forty nine shares each, and Morris Van Raalte, two shares. The property was yielding no revenue, and the company was anxious to complete the improvements. Accordingly, Simon Van Raalte consulted McCully as to what character of building could be constructed that would be most profitable. After deciding upon the character of the proposed building and having the plans drawn therefor, instead of having the building put up directly in the name of the Van Raalte Investment Company, they caused a new company to be organized, called the Emma Building Company, for the sole purpose, as Simon Van Raalte told McCully, and as all the facts and circumstances unerringly show, to put up the proposed building. The Emma Building Company was organized April 15, 1898, with a capital stock of $ 125,000, alleged to be full-paid. The stockholders were: Simon Van Raalte, four hundred shares; Julius Van Raalte, three hundred shares; James F. Davis, three hundred and fifty shares; Bennett Wassermann, one hundred shares; and Jacob Lampert, one hundred shares. Davis, Wassermann and Lampert, the minority stockholders, were elected the three directors, and although the Van Raaltes owned more than a majority of the stock of the company, neither of them was elected a director. But the company authorized Simon to act for it in all things and he did so, transacting all its business. On April 16, 1898, the Van Raalte Investment Company leased the lot to the Emma Building Company for a term of ninety-nine years, at an annual rental of $ 12,000, together with all taxes and assessments, the lessor reserving a lien on the buildings and improvements to secure the rent, and the lessee being required to keep the buildings insured for the benefit of the lessor, and if the buildings were destroyed the insurance money to be used in repairing or rebuilding. The lease further provided that at the end thereof the lessee should surrender to the lessor "the said demised premises, with their appurtenances, and the building and erections thereon situated." On the same day, by a separate writing, the Van Raalte company sold and assigned to the Emma Building Company the partially constructed building then on the property for $ 65,000. Thereafter on September 12, 1898, the McCully Stone Mason Company entered into a contract with the Emma Building Company to construct the building that McCully and Van Raalte had been consulting about, according to certain plans, for $ 60,789.50. The McCully company then contracted with the plaintiff to furnish the ironwork necessary to carry out the contract, which they did, and there is an admitted balance due the plaintiff company of $ 4,605.55 and interest on account thereof, for which that company is seeking by this action to establish a mechanic's lien against the whole estate, leasehold and fee, in the land. Thus matters went on until about May 1, 1899, when the work was stopped, the Van Raaltes claim because the McCully company was unable to proceed. On May 1, 1899, the Van Raalte Investment Company forfeited the lease to the Emma Building Company, and immediately made a similar lease to the same company, except that the rent was reduced from $ 12,000 a year to $ 10,500 a year. On May 11, 1899, the Van Raalte Investment Company sold and conveyed the land, with the improvements thereon, to Thomas H. West and Wm. L. Huse, for $ 220,000, subject however to the second lease to the Emma Building Company, the grantors giving bond to protect the grantee from all liens and incumbrances.

Thereafter on October 4, 1899, Thomas H. West and Wm. L. Huse forfeited the second lease to the Emma Building Company for non-payment of the installment of rent that fell due on August 1, 1899, and being the second installment of rent under the new lease. The McCully Stone Mason Company, the Emma Building Company, the Van Raalte Investment Company, and West and Huse are the parties defendant, but only the Van Raalte Investment Company and West and Huse have appealed. The judgment was for $ 4,801.50. It was personal as to the McCully company, it was against the leasehold in the land and all the right, title and interest of the Emma Building Company, and it was also against the fee simple title now owned by West and Huse. The appellants only question the correctness of the judgment as it affects the fee simple title.

I.

The sole legal question involved in this appeal, is whether the facts stated make out a prima facie case for the plaintiff to go to the jury upon, of a right in the plaintiff to a mechanic's lien against the fee simple title to the land.

Appellants do not deny that the personal judgment against the McCully company, and the mechanic's lien against the leasehold interest of the Emma Building Company, are proper and justified by the evidence. If it be true that the unfinished building was sold by the Van Raalte company to the Emma company for $ 65,000, before any work was done by McCully under his contract with the Emma company, then it would seem quite immaterial to the plaintiff, from a financial point of view, whether the lien attached to anything more than the leasehold interest or not, for the plaintiff's judgment is for only forty-eight hundred dollars, while the...