Wycoff v. Epworth Hotel Construction & Real Estate Co.
| Decision Date | 01 February 1910 |
| Citation | 125 S.W. 550,146 Mo.App. 554 |
| Parties | ROBERT WYCOFF, Appellant, v. EPWORTH HOTEL CONSTRUCTION & REAL ESTATE CO. et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
Judgment affirmed.
Henry M. Post for appellant.
(1) Plaintiff's instruction No. 1 should have been given and defendant's instruction No. 2 should have been refused and all evidence of acts of the trust company, defendant acting as assignee under the assignment, should have been excluded on the objection of the plaintiff, because defendant had not laid the foundation for such instruction or evidence by its pleading or preliminary evidence. (a) Said trust company, as a corporation, is an artificial body restricted in its powers and functions to the enabling act under which it exists. (b) The answer does not aver, nor did any evidence show under what law it was organized; it does not aver or show, even, that it was organized under article 12 of chapter 12 of the Corporation Laws of this State, under which alone any corporation could have been authorized to act as assignee for the benefit of creditors. Assuming the name of "trust company" does not vest it with any authority or powers at all. (c) The answer does not aver, nor was there any evidence that the "trust company" was organized for the specific purpose of acting as assignee, as recited in the second clause of section 1427 of said article, as is required by the seventh clause of section 1424 of said chapter, and as required further by section 971 of said chapter, which provides that "no corporation shall engage in any business other than that expressly authorized by its charter or the law under which it may have been or may hereafter be organized." State ex rel. v. Trust Company, 144 Mo. 58; Matthews v. Skinker, 62 Mo. 329; Bowman v. Dairy Company, 41 Mo.App. 665; Field v. Railroad, 76 Mo. 614; Halpin Co. v. School District, 54 Mo.App. 371; Phleger v. Weltner, 21 Mo.App. 586; Mfg Co. v. Mitchell, 38 Mo.App. 328; Clinton v. Williams, 53 Mo. 141. (2) Defendant's instruction No. 1 should have been refused, and plaintiff's instructions Nos. 4 and 5 should have been given. (a) There was no evidence that the ground in controversy was not in a city, town or village, and the defendant having averred that to be the case assumed the burden of proving the fact, and failed to do so. Thereupon that defense could not avail him. (b) Even if the area of the ground included in the technical description of the land exceeded an acre, the area occupied by the building was less than an acre, and the lien would attach to the ground actually occupied by the building. Oster v. Rabenau, 46 Mo. 597; Holland v. McCarthy, 24 Mo.App. 86; Dewitt v. Smith, 63 Mo. 266; Bradish v. James, 83 Mo. 317; Rall v. McCrary, 45 Mo.App. 365. (c) The lien would attach to the building even if it did not attach to the land. R. S. 1899, sec. 4205; Hicks v. Schofield, 121 Mo. 387. (3) The doctrine that the allowance of plaintiff's demand by the assignee, even if such an act of this assignee should be considered in view of our previous objections, operates as a bar to plaintiff's enforcement of his mechanics' lien is not supported by the cases on which it claimed to rest. An analysis of said cases is respectfully submitted in our argument.
T. K. Skinker for respondent.
(1) The plaintiff's lien claim is void because it describes and claims a lien upon more than one acre of land. R. S. sec. 4203. (2) The allowance by the assignee of the note given for appellant's claim merged his demand into a judgment, and thereafter no action would lie on the account. For that reason the present case was not maintainable. Rice v. McClure, 74 Mo.App. 379; Boiler Works v. Haydock, 59 Mo.App. 653; Lumber Co. v. A. & M. Society, 59 Mo.App. 24; Slate Co. v. Cornice Co., 62 Mo.App. 569; Kendrick v. Mfg. Co., 60 Mo.App. 22; Epright v. Kaufman, 90 Mo. 25; Roan v. Winn, 93 Mo. 503; Nanson v. Jacob, 93 Mo. 351. (3) The court below properly admitted evidence that the plaintiff had procured the allowance of his demand by the trust company acting as assignee for the benefit of creditors of the hotel company. R. S. 1899, secs. 1413, 1427, 1438; Oil Well Supply Co. v. Wolfe, 127 Mo. 616; Harper v. Fidler, 105 Mo.App. 680; Edmondson v. Phillips, 73 Mo. 57; Durham v. Bolivar, 106 Mo.App. 601; Haase v. Distilling Co., 64 App. 131; State v. Walbridge, 69 Mo.App. 657; Cockerill v. Stafford, 102 Mo. 57; Spillane v. Railroad, 111 Mo. 555; Weaver v. Harlan, 48 Mo.App. 319; Grelle v. Loxen, 7 Mo.App. 97; Banchor v. Gregory, 9 Mo.App. 102; Donahue v. Bragg, 49 Mo.App. 273; Spurlock v. Railroad, 93 Mo. 530; Sayer v. Devore, 99 Mo. 437; McDermott v. Claas, 104 Mo. 14; Publishing Co. v. Warehouse Co., 123 Mo.App. 13; York v. Bank, 105 Mo.App. 127; Goodland v. Bank, 74 Mo.App. 365; Russell v. Cassidy, 108 Mo.App. 577; Bank v. Trust Co., 187 Mo. 494; Shewalter v. Pirner, 55 Mo. 218; Matthews v. Skinker, 62 Mo. 329; Bank v. Matthews, 98 U.S. 621; Drug Co. v. Robinson, 81 Mo. 18; Clinton v. Williams, 53 Mo. 141.
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 and 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 and Real Estate Company, owner of the property, being in embarrassed circumstances, made a voluntary assignment of all 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, Revised Statutes 1899, An. St., chapter 2, 1906, 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, Revised Statutes 1899, An. St., sec. 342, 1906. 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, 343, 344, 345, Revised Statutes 1899, An. St., 342, 343, 344, 345, 1906, 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 filed his petition in this cause to the end of enforcing his lien. The Epworth Hotel Construction and 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 and 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 and 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 lien. It is conclusively settled in the law of this State that the allowance by an assignee of the demand or account of a creditor of the assignor under the provisions of our statute relating to assignments for the benefit of creditors is a judgment having all of the force, effect and conclusive attributes of any other judgment given by a lawful tribunal. Among the attributes of a judgment given by a competent tribunal is that it has the effect of merging the original cause of action in...
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