72 Mo. App. 248 | Mo. Ct. App. | 1897
George E. Scott and others, partners, doing business under the name of the A. M. Stevens Lumber Company, brought this action against the defendant, a business corporation, to recover damages for fraud.
In pursuance of said contract between plaintiffs and said planing mill company, the plaintiffs proceeded to manufacture the said mill work, which was required by said contract, and deliver the same on cars at Kansas City to said planing mill company, with a view and purpose that said planing mill company should proceed to deliver the same to said hotel building, for which it had been manufactured by plaintiffs, in pursuance of its contract with said plaintiffs, and cause .said building material to be used in the construction of said building' as said planing mill company was bound to do, under and by virtue of its said contract with said plaintiffs. That if said planing mill company had carried out its said contract with plaintiffs, and had proceeded to deliver said building material to said building, and had caused the same to be used in said building under and by virtue of its said contract with plaintiffs, plaintiffs would thereupon and on account thereof have become entitled to a special remedy under the mechanics’ lien law, whereby plaintiffs could have collected their debt against said planing mill company,. for the purchase price of said building material, notwithstanding the insolvency of said planing mill company, by filing and establishing according to law, a mechanics’ lien, under the mechanics’ lien law, on said building and the land on which it is situated. That when said material reached the possession of said planing mill company in its course from plaintiffs’ mill into said building under the contracts aforesaid, said planing mill company had become, and was, insolvent, which fact of its having become insolvent was unknown to plaintiffs, but was known to said planing mill company and to the defendant at the- time of the transac
That said planing mill company thereupon did not deliver said building material to said building, and did not cause the same to be used in said building, as it was bound to do under the contract aforesaid, but instead thereof said planing mill company did, on or about the eighteenth of February, 1890, in bad faith toward the plaintiffs, and without plaintiffs’ knowledge or consent, turn over and transfer said building material to the defendant, who was a general creditor of said planing mill company, in part payment of a preexisting debt, not yet due, which said planing mill company owed the defendant, and said planing mill company took credit therefor on said debt which it owed to the defendant.
That the defendant,' knowing said planing mill company to be insolvent, and knowing that if said planing mill company had proceeded to deliver said material to said building and had caused the same to be used in said building, as defendant knew said planing mill company was bound to do under and by virtue of its said contract with the plaintiffs, that plaintiffs would thereupon and on that account have become entitled to a special remedy under the mechanics’ lien-law, whereby the defendant knew plaintiffs could have collected their debt against said planing mill company for the purchase price of said material, notwithstanding the insolvency of said planing mill company by filing and establishing according to law, a mechanics’ lien on said building and the land on which it is situated, and knowing of the aforesaid profits which said planing mill company was about to make on said building material, and with a view to appropriate to itself said profit which had -already been fixed and established by said insolvent planing mill company, to the injury
That the defendant did, with intent to cheat the plaintiffs out of their special mechanics’ lien remedy for the purchase price of said material, conceal from the owners of said building the aforesaid facts of plaintiffs’ connection with said building material, and with said planing mill company, and did conceal the aforesaid bad faith of said planing mill company toward plaintiffs.
That since the time, the plaintiffs have recovered a judgment against said planing mill company in the circuit court of Jackson county, Missouri, for the sum of $1,783.14, which said judgment of $1,783.14 included the amount due plaintiffs from said planing mill company on account of said building material. That the
That by the aforesaid wrongful conduct on the part of the defendant, the plaintiffs were injured in this, to wit: That they were thereby deprived of the aforesaid remedy under the mechanics’ lien law, whereby they could have collected the purchase price of said building material, notwithstanding the insolvency of said planing mill company and by the loss of said special remedy through the wrong doing of defendant, plaintiffs have lost the purchase price of said building material, and interest thereon since it was demanded of said planing mill company.
Plaintiffs state that they obtained a judgment on the fifteenth day of April, 1891, in, circuit court of Jackson county, Missouri, against said Kansas City Planing Mill Company for the sum of one thousand, seven hundred and eighty-three dollars and fourteen cents ($1,783.14). That they caused an execution to be duly issued on said judgment on the thirtieth day of April, 1891. That under said execution, the said defendant, the Kansas City Lumber Company, was duly summoned as garnishee. Interrogations were duly filed by the plaintiffs. That said garnishee answered the same, denying that it owed the Kansas City Planing Mill Company anything, or had any property belonging to it in its possession. That the plaintiffs filed a denial to the said answer of said garnishee in said case, and set up that the said garnishee in that case was a fraudulent transferee of the above described finishing material.
That the garnishee filed a reply to said denial, in which it denied that it was a fraudulent transferee of any assets of the defendant, admitting that it had the assets referred to in said denial, but claimed that said
The garnishee appealed to this court, where on November 29, 1894, the judgment was reversed.
Plaintiffs state that one year after said reversal, to wit, on October 31, 1895, plaintiffs duly instituted this suit. Plaintiffs state that the cause of action on which said garnishment suit was founded was the fraudulent transfer of said finishing material and the participation in said fraudulent transfer by both the defendant company and the Kansas City Planing Mill Company.
Wherefore plaintiffs ask judgment against the defendants for $1,500 damages, etc.
The defendant interposed a demurrer to the said petition, assigning as the grounds therefor, first, that it was disclosed on the face thereof that the action was barred by the statute of limitation — more than five years having elapsed since the grievances complained had occurred; and second, that the petition did not state a cause of action. This was sustained and judgment given accordingly and plaintiff appealed.
We will consider the questions raised by the demurrer in the order in which they are therein presented.
On turning to section 6784, Revised Statutes, we find that it is therein provided: “If any action shall be commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a non-suit, or aftei verdict for him, the judgment be arrested, or after judgment for him the same be reversed-on appeal or writ of error, such plaintiff may commence a new action from time to time within one year after such nonsuit suffered, or such judgment arrested or reversed.” It is thus seen that within a year after the reversal of a judgment the plaintiff may bring a new action. The same right is accorded the plaintiff in a case where his judgment is reversed as in case of nonsuit.
It was declared in Berning v. Medart, 56 Mo. App. 443, that the “reversal of judgment for plaintiff is equivalent to a nonsuit only, and the plaintiff still at* liberty to substantiate his recovery in a new action.” In Zurfluh v. R’y, 46 Mo. App. 636, it was held that a judgment simply of reversal is not an adjudication on the merits, but is equivalent to a nonsuit. It has been several times declared by the supreme court that when the plaintiff has suffered a nonsuit or a judgment in his favor has been reversed or arrested he may bring another suit within a year thereafter. Briant v. Fudge, 63 Mo. 489; Shaw v. Pershing, 57 Mo. 416; Houts v. Shepherd, 79 Mo. 141; State v. O’Gorman, 75 Mo. 371. And so it has been ruled by the same court that' a judgment reversed becomes a mere nullity and thereafter conferred no rights and no vitality for any pur
In Briant v. Fudge, ante, Judge Norton, after quoting the section quoted by us at the outset, declares that: “The intention of the legislature doubtless was to give a party who should commence his action within the time prescribed as a bar to his recovery, and had for any of the'causes mentioned in the section failed to succeed in his suit or to obtain the benefit of a judgment, the right to renew or maintain a new action within the time specified.” In Freeman on Judgments, section 333, it is stated that the reversal of-a judgment.is a complete extinguishment of the estoppel. And in section 481 of the same work it is stated that “the reversal of a judgment by any competent authority restores the parties litigant to the same condition in which they were prior to its rendition. The judgment reversed becomes mere waste paper and the parties to it are allowed to' proceed in the court below to obtain a final determination of their rights in the same manner and to the same extent as if their cause had never been heard or decided by any court.” And this statement of the law was referred to with approval in Crispen v. Hannovan, ante.
In Black on Judgments, section 511, it is stated that the reversal of a judgment will of course completely destroy its efficacy as an estoppel since it annuls the very thing which would have made the judgment conclusive, namely, the judicial affirmation that the resolution of the issue propounded was in such and such wise. And in section 683 of the same work it is further stated that the reversal of a judgment throws the whole matter open and destroys its effect as an estoppel; the judgment no longer effects a merger of the cause of action and it does not bar a second action on the
The rule to be extracted from the foregoing authorities is that the simple reversal of a judgment without remanding will destroy its effect as an estoppel and throw the whole matter open; restore the statu quo ante bellum. And if the action was commenced within the period prescribed by the appropriate statute of limitations, the unsuccessful plaintiff may bring another action on his demand within a year after the reversal of his judgment, since such judgment is no bar thereto. We are unwilling to follow the rule declared in Musser v. Harwood, ante, in so far as the same is repugnant to-that just stated. The prototype of this case, as seen by reference to the allegations of the petition herein-before set forth, was brought within five years after the cause of action accrued, and since this was brought within one year after the reversal of the judgment in the former, we must therefore resolve the preliminary question previously stated against the defendant’s contention.
This brings us face to face with the substantial and underlying question raised by the demurrer, viz., whether the petition states a cause of action.
It is settled by the cases cited from our own reports in the preceding paragraph that a subcontractor can have no lien against the owner unless the materials were purchased to be used in the building, erection or improvement, and were so used. The legislature by the enactment of the statute (art. 1, chap. 102, supra) thereby established the principle that labor and materials are to be considered as having been furnished on the credit of the building and not on that of the contractor. This rule does not bear hard on the owner. He has it in his power to detain the price of the building while there are outstanding charges against it, or to stipulate for security against those that may afterward turn up; and if he use common prudence any loss which occurs will eventually fall on the author of it. If he does not he can not charge the mechanic or material-man with the consequences of his own imprudence.
The materials were furnished on the credit of the building and not on that of the contractor. The law presumes that a materialman relies on the lien given by the statute for his benefit. McAdow v. Strutevant, 41 Mo. App. 220; Jones on Liens, sec. 1284. The title to the material was vested by the delivery to the subcontractor not in him, but in the owner of the building, subject only to the re-vindication of the seller. The
It will be observed that under the provisions of our statute, already referred to, the subcontractor is placed on the same footing as the contractor in respect to his power to purchase material on the credit of the building to be wrought therein. It appears from the allegations of the plaintiffs’ petition that the materials furnished for the Thorne building under a contract with the Kansas City Planing Mill, the subcontractor to be wrought into that building and that the same were so wrought. It does not seem to be of any consequence that the subcontractor, to whom the materials were delivered, sold them to the defendant, who later on sold them to the owner of the building. The plaintiffs were no party to these latter transactions, nor ■were they concerned in the same.
The materials went into the construction of the building. When this took place the two fundamental conditions which were required by statute to authorize the lien were brought into existence. If the subcontractor embezzled the materials or turned them over to the defendant in payment of a debt, fictitious or otherwise, this could not affect the plaintiffs’ rights to a lien, and especially so since it was wrought into the building for which it was destined.
The transaction between the subcontractor and the
It is thus seen that the alleged fraudulent action of the subcontractor and the defendant infringed no legal right of the plaintiffs. The latter had the same rights after the alleged fraud that they did before its perpetration. It is elementary law that damages can not be recovered for fraud unless it be shown that injury resulted therefrom. 1 Hilliard on Torts, 76; 1 Bigelow on Frauds, 13, 14; Hutchins v. Hutchins, 7 Hill (N. Y.), 104.
It follows therefore that if all the facts stated in the petition are taken as true for the purpose of considering the demurrer, still the same are not sufficient to constitute a cause of action. The judgment will be affirmed.