Geppelt v. Middle West Stone Co.

— 541 — The opinion of the court was delivered by Burch, J.: The Allis-Chalmers Company sold two stone crushers to the Middle West Stone Company in April, 1910, under a contract reserving title in the vendor until the price should be paid. The crushers were delivered in August, 1910, but the title instrument was not filed until February 15,1911. Mechanic’s liens were filed upon the property of the stone company as follows: R. E. Laidley, September 28, 1910; The Kansas City Structural Steel Company, December 14, 1910; The Inland Steel Company, January 16, 1911; Paul Klein, February 7, 1911; George C. Dalgarno, July 17, 1911. In litigation over the stone company’s affairs these liens were adjudged tó be prior to the Allis-Chalmers Company’s claim for the unpaid price of the crushers. The property of the stone company, including the crushers in controversy, has been sold under stipulation, and the contest is over the proceeds of the sale, which were insufficient to satisfy the mechanic’s liens. The Allis-Chalmers Company appeals. The appellant claims that it did not have a fair opportunity to contest the liens which have been mentioned on account of the procedure adopted by the trial court. Emil Geppelt sued the stone company for wages, obtained judgment, and levied an execution upon specific property belonging to the stone company, which is no longer in controversy. On August 15, 1911, a receiver was appointed for the stone company, who duly qualified and took possession of its property, including the crushers. All creditors of the stone company and all claimants of the property in the receiver’s hands were given leave to interplead. Under this order the appellant filed an interplea, which was substantially — 542 — a petition in replevin for the crushers. Formal inter-pleas were also filed by the Kansas City Structural Steel Company, Klein, and Dalgarno. In a separate action against the stone company brought by the Inland Steel Company mechanic’s liens were established' by the Inland Steel Company and by Klein, Laidley, and the Kansas City Structural Steel Company, but all questions of priority were reserved for future decision. Afterwards this action was consolidated with the Geppelt action for the purpose of establishing priorities and for the purpose of distributing the proceeds derived from the sale of the stone company’s property. Formal interpleas were not filed by the Inland Steel Company and Laidley, who rested upon the pleadings they had previously filed in the separate suit. The consolidated case was brought on for trial immediately after the order of consolidation was made, and the validity and priority of the liens of the parties to the separate suit were practically determined from the pleadings in that action, including the exhibits attached to such pleadings. The specific errors assigned on this proceeding are, want of opportunity to frame proper issues respecting the validity and priority of these liens, and want of definite issues on those subjects. The abstract does not disclose that the objections just stated were pressed upon the attention of the trial court. The order of consolidation was manifestly proper. The pleadings in the two cases apprised the court and the litigants fully of the precise nature of the various claims upon the property of the stone company, and the only grounds of the appellant’s motion for a new trial were that the findings and decision of the trial court were unsupported by the evidence and were contrary to law. It was not suggested that the appellant had been cut off from making defenses to the claims of its adversaries, and all the objections now 'urged against the validity and priority of the — 543 — various liens allowed by the trial court are reviewable here on the record already made. The result is that the appellant is not in a position to ask for a new trial upon the grounds now urged, has suffered no prejudice to its substantial rights because of the course pursued, and a new trial would serve no beneficial purpose. Error is assigned upon the allowance of each of the liens referred to. Laidley’s lien is contested on the ground that the amount claimed in the lien statement is uncertain.. The statement begins as follows: “Amount claimed, $942.-76 less freight.” The deductions to be allowed on account of freight are not specified, but the items of the account showing all debits and credits are given, resulting in what is stated to be the “balance due” in the sum of $669.41. The lien of the Kansas City Structural Steel Company is contested because the lien statement described, the stone company a,s “owner” when it merely had a leasehold estate in the property improved. It is not-necessary to specify in a lien statement the precise nature of the estate in land possessed by the person procuring labor or material for its improvement. The •lien attaches to his interest, whatever that may be, and as to that interest he is properly described, as owner. The lien of. the Inland Steel Company is contested on the ground that the lien statement was not filed within the statutory time. To arrive at this conclusion it is necessary to compute the time from the date of the.' order given to the claimant, which happens to appear in the statement, instead of from.the date the material was furnished, as shown by the invoice to the stone company. Klein’s lien is contested because the lien statement shows that the material was sold for cash and that title was reserved until the price was paid. The statement shows, however, that the material was furnished fo.r the erection of improvements on the property of — 544 — the stone company and that such material to the amount claimed was used by the stone company for such purpose. This satisfies the statute. Dalgarno was a common laborer about the stone company’s plant, who did whatever he was called upon to do. At some time he helped set up stone crushers. He cleaned boilers. He was a watchman part of the time the plant was idle, and to this extent his services inured to the benefit of the appellant. Occasionally he did some painting, and when the receiver took charge he did some work gathering up scáttered articles and putting them into a shed. Of all the parties to the litigation he can least afford to lose his wages, but his mechanic’s lien must be disallowed, because the court is wholly unable to bring his claim within the terms of the mechanic’s-lien statute. He is, however, entitled to a laborer’s preference for eighty-four days’ work, at one dollar and sixty-five cents per day, for labor performed within six months immediately preceding the appointment of the receiver. (Gen. Stat. 1909, § 4660.) This preferred claim should have been paid first from the funds which came into the receiver’s hands, but the preference is not lost because that was not done. The plaintiff’s title contract was absolutely void as to all the creditors whose claims have been discussed, their liens having attached before the contract was recorded. (Gen. Stat. 1909, § 5237; Paul v. Lingenfelter, 89 Kan. 871, 132 Pac. 1179.) The plaintiff argues that the contract of sale was good between the parties to it; that the contract did in fact withhold title from the vendee; that the vendee obtained no title, whether the contract were recorded or unrecorded; that the title of lienors could not rise higher than the title of the vendee, who had none; and consequently that there was no ownership in the vendee of the crushers upon which mechanic’s liens could be predicated. This argument merely flies in the face of the statute, which suspends the force of the provision in the contract of sale reServ — 545 — ing title in the vendor, and so renders the sale absolute so far as innocent purchasers and creditors are concerned until the contract is placed on record.' The pleadings and proof on the part of the appellant disclosed a sale and delivery of personal property to the stone company, the title to which was reserved in the vendor. Before mechanic’s liens upon such property could become effective it was necessary that it should become a part of the real estate which it was designed to improve. There is no direct proof, or even indirect proof of a substantial character, that this ever took place. The findings of the trial court are silent upon the subject. It is stoutly contended on one side that the crushers never were actually attached to the realty, and on the other side that they were. The issue does not seem to have been tried or determined. The judgment of the district court awarding liens ■against the real estate of the stone company is affirmed, except as to Dalgarno, and as to him the judgment is modified as indicated. A new trial is awarded of the ■single issue just discussed, and the district court is directed to distribute the fund in the hands of the receiver according to the result of that trial.