Badger Lumber Co. v. Stepp

GANTT, P. J. This action was commenced in the circuit court of Grundy county to enforce a mechanic’s lien on a certain three-story building in the city of Trenton for $2,686.11. The administrator of King filed his separate answer in which he pleaded that he had no knowledge or information sufficient to form a belief of the matters and things alleged in the petition and therefore denied each and all of the allegations therein made. Mrs. Lilly also filed a separate answer which consisted, first, of a general denial; secondly, that she was the sole owner of the lot described in the plaintiff’s petition, subject to a certain deed of trust in favor of David W. Coon et al., and that the other defendants had no interest in said lot except as hereinafter stated. “Defendant further states that during the years 1895- and 1896, she had erected on her said lot a two-story brick building with a basement, and that defendant John W. King was the contractor with her for the erection thereof,, and that the said building was erected for her by said King. After the erection of said two-story building had been com-, menced by said King, this defendant granted to defendants Robert T. Linney, James Eitzpatrick, Charles S. Proffit, Otto Stein, Paris J. Hendrickson and James R. Miller, by deed duly executed and -acknowledged on the fourteenth. — 373 — ■day of February, 1896, the privilege of erecting over and upon this defendant’s said two-story building a third story thereto, the said grantees, their grantees and assigns- for■ever owning and controlling the said third story. Said deed was filed for record in the office of the recorder of deeds within and for Grundy county, Missouri, on the fifteenth day of February, 1896, and is recorded in booh number 57, at page 137, of the records of said office. In pursuance of said grant of privilege and in accordance with its terms, a third story was erected on this defendant’s said two-story building, and so far as this defendant knows, said third ■story is still owned by the original grantees in said deed. “Defendant is informed and so believes that the plaintiff lumber company furnished to the said King, contractor with' this defendant as aforesaid, certain materials which entered into the construction of her said two-story building; but defendant’denies that the account filed by the plaintiff with the circuit clerk of Grundy county, Missouri, for a lien against her said building, and for the enforcement of which lien this suit is brought, is a just and true account of such •materials, but avers that the materials specified in said account are greatly in excess of the materials of like character which entered into the construction of her said building. As to whether or not plaintiff lumber company furnished any materials which entered into the third story erected upon her said building as aforesaid, this defendant has no personal knowledge; but if any materials were so furnished and used in the construction of said third story, defendant avers that they were not furnished upon any contract directly or indirectly with this defendant, nor were they furnished to .any person with whom this defendant stood in contractual relations for the erection of such third story. “For further answer and defense defendant says that in the contract between herself and said John W. King for — 374 — tlie erection of her said building, it was agreed, stipulated and provided that said building should be completed by said King and delivered free from all liens and encumbrances of whatever kind. “Wherefore, having fully answered, defendant prays judgment of the court that plaintiff have no lien against her property in the petition described, and that she go hence without day.” The other defendants filed amended answer as follows: “Gomes now in vacation Robert T. Linney, James Fitzpatrick, Chas. S. Proffit, Otto Stein, P. J. Hendrickson and James R. Miller and for their separate and first amended answer to plaintiff’s first amended petition say: That during the month of February, 1896, they secured, by grant from one Oarrie B. Tilly, the privilege of building upon her two-story and basement brick building, then in course of erection by her upon her certain lot of land and which is the lot described in plaintiff’s petition, a third story, which story was to be owned, occupied and controlled by the defendants joining in this answer to be used for lodge room purposes. That said privilege was conveyed to these defendants by the said Carrie B. Lilly by deed duly executed, acknowledged and delivered, on the 14th day of February, 1896, which said deed was filed for record in the office of deeds of Grundy county, Missouri, on the 16th day of February, 1896, and is recorded in book 57, at page 137, of the records of said office; that in pursuance of said privilege so. granted as aforesaid, these defendants caused to be erected, on the said two-story building of the said Carrie B. Lilly, a third story, which said third story is the exclusive property of these defendants, the said Carrie B. Lilly having no claim, right, interest or ownership whatever therein. That these defendants have no claim, right or ownership in the land upon which the said two-story building of the said Carrie B. Lilly stands, except as above set out and described. — 375 — “Defendants further say that the said third story built upon the said two-story building of the said Oarrie B. Lilly as aforesaid was built by one John W. King, one of the defendants herein, under and by virtue of a contract duly made and entered into and these defendants and others; and that the said Oarrie B. Lilly was not a party to the contract in anywise nor had any interest therein. “These defendants are informed and believe that the plaintiff is a corporation duly organized and incorporated, as in plaintiff’s petition stated, that plaintiff lumber company furnished to said King certain materials which were used in the construction of their said building, so erected upon the two-story building of Carrie B. Lilly as aforesaid, but say that the account filed by plaintiff with the clerk of the circuit court of Grundy county, for a mechanic’s or mate-rialman’s lien, and for the enforcement of which this suit is brought, is not a just and true account thereof after all just credits have been given, but on the contrary that said account is for much more material than was used in the construction of their said building, so erected upon the two-story building of Carrie B. Lilly as aforesaid, and these defendants aver the facts to be, that all the materials which were furnished by plaintiff lumber company to said King and went into the construction of their building, so erected upon the two-story building of Carrie B. Lilly as aforesaid, if any were so furnished, did not exceed in value the sum of nine hundred dollars, of which said sum defendants joining in this answer on the-day of June, 1896, caused to be paid to defendant King, which was so paid to said King by the agents of these defendants, by check on the Farmers’ & Merchants’ Bank of Trenton Missouri, which said check was assigned and delivered to plaintiff lumber company on the 10th day of June, 1896. “As to whether or not plaintiff furnished any other materials which were used in the construction of the two-story — 376 — building of the said Carrie R. Lilly upon which the building of these defendants stands, these defendants have no personal knowledge or information to form a belief, but if any materials were so furnished and used these defendants aver that they were not so furnished under any contract directly or indirectly with these defendants nor were they furnished to any person having any connection or privity with these defendants. “Defendants, for further answer and defense, say that there is a misjoinder of parties defendants in this cause, for the reason that there is no privity of contract nor interest in common between Carrie B. Lilly and these defendants. “Wherefore and by reason of-all the premises aforesaid these defendants pray the court to ascertain and determine the amount, if any, of the value of the materials furnished to said King by plaintiff lumber company and which were used in the construction of their said building so erected upon the two story building of Carrie B. Lilly aforesaid, giving these defendants credit for the sum of two hundred dollars, which said sum they caused to be paid to J. W. King and which was received by plaintiff lumber company on the 10th day of June, 1896, as aforesaid, that these defendants may pay the balance so found to be due and be fully discharged from all liens and incumbrances, upon their said building, and having fully answered defendants ask to be discharged with their costs.” The reply was a general denial as to both answers. The cause was referred to Millard P. Robinson, Esq., to hear and decide the whole issue and report his conclusions of fact and law. In due time, the referee, after duly qualifying, heard the evidence in the case, caused it to be reported by a stenographer and incorporated it in full in his report. His report, and all the evidence and his findings are set out at length in the abstract of Carrie B. Lilly on this appeal. — 377 — Erom tbis report we extract the following: He found: Eirst. That Mrs. Lilly is the sole owner of the lot of ground described in this suit. Second. That she contracted separately with King for the erection of a two story building on said lot and that she is the sole owner of said two story building. Third. That Mrs. Lilly, after the erection of her two story building was commenced, granted by deed duly acknowledged and recorded to her co-defendants herein as trustees for the Knights of Pythias lodge, the privilege of erecting a third story to said building, of which said third story ■said lodge was to be the sole owner. Eourth. That the said lodge through its lawful agents separately contracted with said King for the erection-of said third story. Fifth, That the plaintiff, the Badger Lumber Company, furnished the material for building both the two story building for Mrs. Lilly, and the third story for the lodge, and made no discrimination whatever between the material furnished in its contract with King upon his contract with Mrs. Lilly for her building, and that furnished him upon his contract with the lodge, but commingled the whole account for both in one account, to-wit, the one constituting the basis of this action. The referee’s conclusion of law was “that one account, one lien and one suit was a sufficient compliance with the mechanic’s lien statute of this State,” and he recommended judgment for plaintiff. Exceptions were duly filed by Mrs. Lilly and by the lodge. The exceptions were overruled, and judgment rendered for plaintiff. After unsuccessful motions by all the defendants except King’s administrator, an appeal was granted to this court. — 378 — I. A question of practice is raised at tbe threshold of this discussion. This cause was originally set down for hearing at the January call of this division for this year, and» for January 10, 1900. On the 28th of November, 1899, it was ordered that all civil cases on the January call of this division be continued until the further order of this court, not to be re-set before February 1, 1900. The cases set down for argument at the January call were never again assigned for hearing until the present April term when this cause was set for April 13th. On March 10th, the defendants, except Mrs. Lilly, served their abstract and brief on respondent. Respondent now contends that the defendant lodge is in default in the matter of serving and filing its brief herein. Ey the rules of this court an appellant is required to serve the respondent with a copy of his abstract and brief thirty days before the day on which the cause .is set for hearing. Forty days before the day originally set for hearing the call was ordered continued. Appellants then were not in default by not serving respondent for the January call. They served him over thirty days before the April call. This was all the law required at their hands. It has been the practice of this court for many years to regard the discontinuance of a call as tantamount to an order for a resetting of the docket and when counsel have prepared and served their briefs in time for the day on which the cause is finally set, they will not be deemed in default. II. Another objection is raised to the sufficiency of the abstract filed by the lodge. As early as December 6, 1899, the defendant Mrs. Lilly, had served her abstract and brief, on respondent. That abstract set out all the pleadings in full; the order appointing the referee; his report in full with all the evidence taken by him; the exceptions to his report — 379 — by all tbe defendants except Bang’s administrator; tbe judgment of tbe court confirming bis report, and tbe motions for new trial, and in arrest, and tbe orders overruling tbe same; tbe exceptions of Mrs. Lilly thereto; tbe order granting time to file bills of exceptions; tbe record of filing tbe two bills witbin tbe time allowed. When tbe defendant lodge came to prepare its abstract it called attention to tbe fact that Mrs. Lilly’s abstract contained all tbe record save and except its exceptions and thereupon it set out its exceptions to the overruling of its exceptions to tbe report of tbe referee and tbe overruling of it9 motion for new trial and incorporated said motions in full. Conceding that Mrs. Lilly’s abstract was sufficient for her appeal, was it necessary for tbe defendant lodge to again print that whole record, or could it by appropriate references say to tbe court that its co-defendant bad already abstracted tbe record and refer tbe court to that abstract then on file ? Tbe question furnishes its own answer. Tbe law never requires a vain and useless thing to be done. Their co-defendant having filed an abstract of tbe record, and- these defendants having referred to tbe exact pages of that abstract for so much of tbe record as they deemed necessary, and then supplemented it with tbe exceptions peculiar to their own defenses it must be ruled sufficient now. . This brings us to tbe objection to Mrs. Lilly’s abstract, made for tbe first time in tbe concluding portion of plaintiff’s brief. Counsel cite us to the cases of Western Storage and Warehouse Co. v. Glasner, 150 Mo. 426; Lawson v. Mills, 150 Mo. 428; Ricketts v. Hart, 150 Mo. 64; and Roberts v. Jones, 148 Mo. 368. Neither of said cases reach tbe point here. Tbe statute of this State, section 2253, Revised Stat — 380 — utes 1889, requires appellant to file a certified copy of tbe judgment and the order granting the appeal and then devolves upon him to make an abstract of the record, and deliver a copy to the opposite party in the time required by the rules of the court. The abstract, we have consistently ruled, does not require the certificate of the clerk nor the various matters of record in full. [Ricketts v. Hart, 150 Mo. 64; McDonald & Co. v. Hoover, 142 Mo. 484.] The purpose of the statute was to avoid unnecessary cost, and to encourage concise statements of the record. Moreover it provided within itself a method to prevent imposition on this court, by requiring respondent, if dissatisfied, to file an additional abstract within a certain time, and if the parties could not concur as to the record, the clerk should certify to this court so much of the record as is in dispute. When a bill of exceptions is signed and filed, the matter therein becomes matter of record. When, therefore as in this ease, the abstract shows the bill was duly filed and then proceeds to state what the record shows, it is conclusive, unless the respondent files a counter abstract as required by our rules. No 'Such thing has been done in this case. The abstract is unusually full and complete and is not open to the attack 'made on it for the first time in the brief. III. We come now to the legal proposition raised by this appeal. The lien given by our laws to mechanics and materialmen is statutory. It is imposed upon the owner of property without his consent and the statute must be pursued before it can be enforced. While the statute should receive a liberal and reasonable construction, the essentiaLprovisions of the law must be followed or the lien will not be sustained. It was found by the referee and affirmed by the court upon uncontradicted evidence that Mrs. Lilly was the owner ■of the lot upon which the building was erected; that she — 381 — contracted with King to build her a two-story building thereon, and that subsequently Mrs. Lilly granted by written conveyances the right to the Knights of Pythias lodge to build a third story on the top of her two-story building, which should be the exclusive property of the lodge; that the lodge made its own separate and independent contract with King to build said third story. Mrs. Lilly was no party to that contract, and the lodge was no party to her contract with King. Section 6705 (E. S. 1889), of our statute is as follows: “Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler, or machinery for, any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this article, shall have for .his work or labor done, or materials, fixtures, engine, boiler, or machinery furnished, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated) to the extent of one acre; or if such building, erection or improvement be upon any lot or land in any town, city or village, then such lien shall be upon such building, erection or improvements, and the lot or land upon which the same are situated, to secure the payment for such work or labor done, or materials, fixtures, engine, boiler or machinery furnished aforesaid.” Section 6706 is as follows: < “The entire land, to the extent aforesaid, upon which any such building, erection or other improvement is situated, including as well that part of said land which is not covered with such building, erection or other improvement as that part thereof which is covered — 382 — with tbe same, shall be subject to all liens created by this article, to the extent and only to the extent of all the right, title and interest owned therein by the owner or proprietor of such building, erection or other improvement, for whose immediate use or benefit the labor was done or things were furnished.” It will be observed that the statute confines the right to a lien to the mechanic or materialmen who does the work or furnishes the material under or by virtue of a contract with the owner or proprietor, his agent, etc. Hence a party must show that he did the work or furnished the material under a contract with the owner or the contractor for the building. [Hause v. Carroll, 37 Mo. 578; Barker v. Berry, 8 Mo. App. 446; Horton v. Railroad, 84 Mo. 602.] As was said in McAdow v. Sturtevant, 41 Mo. App. loc. cit. 226: “Although a lien of this kind is the creature of the statute, still it can not exist.... without the statute nor with it without this essential condition precedent. And, while the lien is not created by the contractual relation, still it must have its inception in that relation.” This is so well established by the statute itself,- and the construction put upon it by this court and the courts of appeals, that it is unnecessary to fortify it further. What, then, results in this, case upon the established and conceded facts ? Plaintiff, according to the testimony of its own agents, furnished materials to the amount of $1,249.59 under King’s contract with the lodge, and not under Mrs. Lilly’s contract with King. Obviously the material furnished the lodge to build the third story was not furnished under a contract with Mrs. Lilly and her lot and two story building can not therefore be bound therefor. But plaintiff’s counsel argue that it is immaterial in this State how the contract is made between the owner of prop — 383 — erty and the contractor, or what are the provisions of the contract; that the only material contract for consideration is that between the materialmen and the contractor, and rely upon Henry v. Evans, 97 Mo. 47, as so holding. We do not so interpret that decision. Carried to its logical sequence the argument of learned counsel dispenses altogether with any necessity for a contract between the owner and the original contractor, whereas Henry v. Evans proceeds upon the assumption that by virtue of this law the contractor is invested with power to charge the property for the reasonable value of the labor and materials supplied by the sub-contractors, so that it is too plain for argument that a contract between the owner and the original contractor is a sine qua non to any lien under the statute. We are not dealing now with the question which arose in Henry v. Evans, but the proposition here is can a contractor under a contract to build a two-story house for A, bind A for materials furnished him to carry out a contract with 33. for a house which 33. is to own when finished. We think the statute furnishes its own limitation, and that the contractor is only authorized to bind A for material or labor furnished in carrying out his contract in building A.’s house or building, and inasmuch as in this case it is conceded that the lien sought in this case is not confined to materials furnished Mrs. Lilly under her contract with King, but confessedly seeks to charge her lot and her two story building with $1,249.59, which was furnished under the lodge’s separate contract with King for the third story of said building, and that the materials so sued for were so commingled under the two contracts that the items can not be separated, the said lien can not be enforced. King never had any contract with Mrs. Lilly to build the third story of said building. As to that story King was not — 384 — ber contractor. Tbe two contracts are in writing and no-doubt can exist as to Mrs. Lilly’s relation to tbe third story. In no sense was tbe lodge ber agent, contractor or sub-contractor, in making its own contract. To uphold this lien as against Mrs. -Lilly would be to allow plaintiff a lien against ber lot for materials furnished under a contract with persons who bad no interest in ber property, and thus create a lien which neither tbe common law nor our statutes have given. IY. But there is another reason why this lien can not be sustained. Tbe plaintiff has joined in one account and one notice and in one count in its petition, tbe materials furnished under tbe two separate written contracts, one by Mrs. Lilly with King, and tbe other by tbe lodge with King, each for distinct and entirely separate work. Materials furnished under distinct contracts can not be mingled in one account, and a lien obtained for the aggregate. [Livermore v. Wright, 33 Mo. 31; Allen v. Frumet Mining & Smelting Co., 73 Mo. 688; O’Connor v. Railroad, 111 Mo. 185.] Whatever tbe character of tbe estate acquired by tbe lodge it is absolutely certain that these materials for which this lien is asked were furnished under two distinct contracts to different owners. V. Mrs. Lilly owns in severality tbe lot upon which the-building was erected on which the lien is sought. She owns absolutely the two story building built for her by King. The-Knights of Pythias own the third story, but no interest in Mrs. Lilly’s lot. The materials furnished King for Mrs. Lilly’s-building were not furnished under any contract with the Knights of Pythias, their contractor, or sub-contractor, agent or trustee, and the material furnished the lodge for the third story was not furnished under Mrs. Lilly’s contract. As tne-materials furnished the two were so commingled and con — 385 — fused tbat it can not be ascertained wbat items went into tbe separate buildings, tbe account filed for a lien is not a true and just account as to either Mrs. Lilly or tbe lodge. Plaintiff insists tbat tbe building is. one and tbe lien is given against tbe whole building, but this ignores tbe separate ownership in tbe building. Plaintiff could have, and it was its duty if it desired to obtain a mechanic’s lien, to have kept an account of tbe materials it furnished King under bis contract with Mrs. Lilly and filed its separate lien on her lot and two story building. It could have proceeded against tbe third story in tbe same way against tbe lodge. It is no unusual thing for one person to own tbe lot and tbe first and second stories of tbe building thereon, and another, tbe third story. They are not tenants in common; nor joint tenants, but merely adjoining tenants. [McCormick v. Bishop, 28 Iowa 239; Rhodes v. McCormick, 4 Iowa 368; Thorn v. Wilson, 110 Ind. 325; Cheeseborough v. Green, 10 Conn. 318; Hahn v. Baker Lodge, 21 Ore. 30; 1 Washburn on Real Prop. (5 Ed.), p. 18; Shirley v. Crabb, 138 Ind. 200; Newhoff v. Mayo, 48 N. J. Eq., 624.] These two properties, tbe one owned by Mrs. Lilly and tbe other by tbe lodge, built as they were under separate and distinct contracts, with tbe separate owners, can not in our opinion, be subjected to one lien, on one indiscriminate account, and in one action in one count. Learned counsel for plaintiff say: “We have not contended in this case and we do not now contend tbat tbe interest of Mrs. Lilly and tbe interest of tbe lodge are not separate, but it does not follow tbat because they are separate tbat therefore plaintiff could not prosecute a single lien and a single suit instead of two. Counsel then likens tbe interests of Mrs. Lilly and tbe lodge to a case of joint tenants in common, a life tenant and a remainderman or reversioner, but on legal principles we utterly fail to see the analogy. — 386 — As already said they are not tenants in common, bnt at most are both, adjoining tenants and neither could bind tbe other by contract or subject the other’s property to a lien. Numerous authorities are cited to us in which contiguous proprietors have made one joint contract for one common building on adjoining lots, and the lien sustained. These cases were determined in nearly every case with reference to local statutes, but whatever the ground of decision, they are predicated on the joint contract of the owners of the land, whereas in this ease there is not the slightest pretense of a joint contract. The two contracts here are separate and distinct and in. writing, leaving nothing to inference. And as we have before said the claim that Mrs. Lilly constituted the lodge her agent to build the third story is contradicted by every fact in the record. "We have given the fullest consideration to the plaintiff’s argument, but are driven to the conclusion that its attempt to commingle these two accounts for material under two distinct contracts against distinct and separate interests in this building can not be upheld and the conseqence is, we must adjudge that, the conclusion of law upon the facts found was erroneous, and the judgment is reversed. Sherwood and Burgess, JJ., concur.