Wycoff v. Epworth Hotel Construction & Real Estate Co.

• Citation: 125 S.W. 550,146 Mo. App. 554
• Court: Court of Appeal of Missouri (US)
• Decision Date: 01 February 1910
• Parties: WYCOFF v. EPWORTH HOTEL CONSTRUCTION & REAL ESTATE CO. et al.<SMALL><SUP>†</SUP></SMALL>

125 S.W. 550

146 Mo. App. 554

WYCOFF v. EPWORTH HOTEL CONSTRUCTION & REAL ESTATE CO. et al.^†

St. Louis Court of Appeals. Missouri.

February 1, 1910.

Rehearing Denied February 10, 1910.

1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 307)—ALLOWANCE OF CLAIMS—EFFECT.

The allowance by an assignee for the benefit of creditors of the demand of a creditor of the assignor is a judgment.

2. JUDGMENT (§ 582)—EFFECT—MERGER OF ORIGINAL CAUSE OF ACTION.

A judgment of a competent tribunal has the effect of merging the original cause of action in the judgment, and it becomes extinguished, and no further action is maintainable on the original cause of action, but a suit subsequently instituted to collect the indebtedness must be predicated on the judgment.

3. MECHANICS' LIENS (§ 214)—ENFORCEMENT —MERGER OF LIEN ACCOUNT IN JUDGMENT— EFFECT.

Under Rev. St. 1899, § 4207 (Ann. St. 1906, p. 2290), requiring a lien claimant to file a just account of the demand due, etc., a lien claimant who has merged his lien account in a judgment is precluded from employing the account as a basis for enforcing a mechanic's lien; and, though the indebtedness continues by virtue of the judgment which is unpaid, the account is extinguished.

4. MECHANICS' LIENS (§ 214)—ENFORCEMENT —MERGER OF LIEN ACCOUNT IN JUDGMENT —EFFECT.

A lien claimant who voluntarily presents his demand to and obtains its allowance before the assignee for the benefit of creditors of the owner forfeits his rights to thereafter enforce the lien in a suit on the account.

5. APPEAL AND ERROR (§ 260)—RULINGS ON EVIDENCE—EXCEPTIONS—NECESSITY.

Where no exceptions were preserved to the admission of evidence, the rulings thereon will not be reviewed on appeal.

6. PLEADING (§ 409)—SUFFICIENCY—AIDER BY VERDICT.

Where an answer was not questioned by demurrer or motion to make it more definite and certain, and no exceptions were preserved to the admission of evidence thereunder, its sufficiency must be considered with reference to such aid as it received from admissions against interest by plaintiff contained in the petition, and such reasonable implications as arise from the averments contained in the answer.

7. PLEADING (§ 34) — SUFFICIENCY — AIDER BY VERDICT.

In determining the sufficiency of a pleading after verdict, all necessary implications and reasonable inferences of fact must be allowed in aid thereof.

8. PLEADING (§ 434)—ANSWER—SUFFICIENCY.

Where the petition alleged that defendant was a domestic corporation, an answer, averring that defendant was a trust company, that it had deposited with the superintendent of the insurance department $200,000 in securities, approved by the superintendent, and that it had satisfied the superintendent of its solvency, and had received a certificate from him, and thereby became qualified to act as assignee for the benefit of creditors, sufficiently averred, after verdict, that it was a domestic incorporated trust company, authorized under Rev. St. 1899, §§ 1427, 1438 (Ann. St. 1906, pp. 1120, 1126), to act as assignee for the benefit of creditors, and its allowance of a claim presented by a creditor of an assignor had the force of a judgment.

9. EVIDENCE (§ 22)—JUDICIAL NOTICE.

The court will take judicial notice of the fact that a domestic incorporated trust company is such only as is provided for in Rev. St. 1899, c. 12, art. 12 (Ann. St. 1906, pp. 1119-1128), relating to the powers of trust companies.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Action by Robert Wycoff against the Epworth Hotel Construction & Real Estate Company and another. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

H. M. Post, for appellant. T. K. Skinker, for respondents.

NORTONI, J.

This is a suit to enforce a mechanic's lien against a hotel building and an acre of land on which it is situate in St. Louis county. The plaintiff recovered a personal judgment against the original contractor by default on his cause of action, but the court declined to enforce the lien against the property, the title to which now resides in the other defendant. The lien having been denied, and judgment given for the defendant Trust Company of St. Louis county to that effect, plaintiff prosecutes the appeal.

It appears that plaintiff contracted with the defendant Epworth Hotel Construction & Real Estate Company, a corporation, the owner, to furnish certain materials and perform certain services in and about the erection of a hotel of considerable proportions, situated on a plot of ground in St. Louis county. The plaintiff fully performed on his part by furnishing the materials and labor which were employed in the construction of the building, and there remained a balance due him on account of such materials and labor amounting to $772.77, for which he duly and properly filed his mechanic's lien and account in the office of the clerk of the circuit court of St. Louis county. Afterwards, and prior to the expiration of the time allowed plaintiff for the enforcement of his lien, the Epworth Hotel Construction & Real Estate Company, owner of the property, being in embarrassed circumstances, made a voluntary assignment of all of its property, including the hotel building, lands, etc., by competent deed, to the defendant Trust Company of St. Louis County, a corporation, for the benefit of creditors under the provisions of chapter 2, Rev. St. 1899, Ann. St. 1906, c. 2, concerning such assignments. The Trust Company of St. Louis County, having duly accepted the assignment and qualified as assignee in accordance with the law in such cases made and provided, set a time and place for the hearing and allowance of demands against the assigned estate, and gave notice to that effect, as is provided for in section 342, Rev. St. 1899 (Ann. St. 1906, § 342). Although the plaintiff had filed his lien account, and given proper notices to that effect that he intended to enforce the same against the building and land referred to, he nevertheless presented his demand to the assignee for allowance. The assignee, having been satisfied by the proof produced thereon, gave judgment under the provisions of sections 342-345, Rev. St. 1899 (Ann. St. 1906, §§ 342-345), for the plaintiff, establishing the same as a demand against the assigned estate in its hands for the full amount thereof. Thereafter, and within the time prescribed for the institution of suits to enforce a mechanic's lien, the plaintiff field his petition in this cause to the end of enforcing his lien. The Epworth Hotel Construction & Real Estate Company, as original owner and contractor, and the defendant Trust Company of St. Louis County, in whom then resided the title, were each made parties defendant. The defendant Epworth Hotel Construction & Real Estate Company, although duly served, did not appear but, on the contrary, suffered judgment to go against it by default on the cause of action; that is, the account sued upon. The defendant Trust Company of St. Louis County defended the action in so far as the enforcement of the lien against the property was sought. It appearing that the plaintiff had filed his demand and taken judgment thereon before the Trust Company of St. Louis County, assignee, for the benefit of the creditors of the original owner and contractor, Epworth Hotel Construction & Real Estate Company, the court declared the law to the effect that the enforcement of the lien was precluded by virtue of the judgment given for plaintiff by the assignee on his demand. Although another question is presented as well by instructions given and refused, it will be unnecessary to notice it, as it is obvious that, if the court was right in declaring the law with respect to the effect of the allowance of plaintiff's demand by the assignee, that proposition alone will operate to defeat the right to enforce the...