174 S.W.2d 226 | Mo. Ct. App. | 1943
This is an action to enforce a lien under the statute entitled, "Liens of Mechanics and Materialmen" (Sec. 3546 et *537 seq., R.S. 1939), for work or labor performed by plaintiff in hauling away debris and material from, and hauling necessary tools and materials to, a building being wrecked and removed from a lot located at 6th and St. Charles street, St. Louis, Missouri, in order to clear the ground for the erection of a new building.
Peter A. O'Neil Estate owned the fee in the lot and the old building, and the Karon Realty Company was the owner of a 99 year leasehold thereon, by the terms of which it was required to erect a new building in place of the existing building, and the Lerner Shops of Missouri, Inc., was the owner of a 25 year leasehold from Karon Realty Company, which likewise obligated it to erect a new building in place of the existing building, the plans therefor to be approved by both the Karon Realty Company and the Peter A. O'Neil Estate. The Lerner Shops submitted plans and specifications for the new building, the cost estimate including the wrecking of the old building; which were approved in writing by Karon Realty Company and Peter A. O'Neil Estate.
Thereafter Lerner Shops contracted with Fruin Colnon Contracting Company to wreck the old building and erect the new building, and the latter company contracted with G.H. Shartzer for wrecking and removing the old building. Thereupon Shartzer entered into an agreement with plaintiff to furnish trucks and labor to haul necessary tools and material to the old building and to haul away the wreckage of the old building. Plaintiff fully complied with its agreement, and its bill in the sum of $1792.26 has never been paid by Shartzer or anyone else.
In the circuit court plaintiff had judgment by default against defendant Shartzer for $1792.26, and for $268.83 interest, aggregating $2061.09 and for costs. And upon trial plaintiff was given a lien upon the interest of the Peter A. O'Neil Estate, Karon Realty Company, and Lerner Shops of Missouri, Inc., and the three last-named defendants appeal.
Appellants' contentions are, that (a) plaintiff's claim against Shartzer was not predicated on lienable charges; (b) that plaintiff did not perform any work or labor upon or furnish any material for the erection of the new building, and (c) that plaintiff furnished trucks and drivers to haul away debris from a wrecked building for which the statutes do not provide a lien. No question is raised as to the amount of plaintiff's claim being just and reasonable for the services performed, nor of the proper and timely filing of the lien and giving the required notices, and there is no contradiction of plaintiff's evidence that it furnished the services sued for upon the faith and credit of a lien upon the premises and building. Therefore, the only issue presented is whether a mechanic's lien will be allowed for work and labor performed in the wrecking and removal of an old building even though such work and labor is performed persuant to an integral contract *538 for the removal of an old building and the erection of a new building at the same site. The question has never been directly determined by any of our Appellate Courts.
Section 3546, Revised Statutes 1939, provides:
"Every mechanic or other person, who shall do or perform any work or labor upon . . . any building, erection or improvements upon land . . . under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor . . . shall have for his work or labor done . . . a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, . . ."
Even though liberally construed as it should be the statute does not go so far as to authorize a lien on the real estate to which it is attached for the mere wrecking and removal of a building. We may go further and say that the statute gives no lien on the real estate in any case except as correlative to a lien on a building, erection or improvement, and then upon the theory that the building, erection or improvement has been a benefit to the realty and enhanced its value. This was definitely decided in the case of Holtzhour v. Meer,
"The Kansas City Court of Appeals in case of Page v. Bettes,
We do not mean to hold that the mere fact that provision was made in the building contract for the wrecking of the old building would of itself be the controlling element in determining that the wrecking of the old building constituted a part of the erection of the new building. We think the controlling element for consideration in any such case is and ought to be, what was the immediate purpose of the owner in having the old building wrecked? Was it a part of the owner's scheme and plan to proceed without interruption or delay and as one project with the erection of a new building? If that was the intention, purpose, and aim of the owner, to be determined in each case from all of the attending facts and circumstances, the claim is and ought to be a lienable one, being in effect for work or labor upon the new building, erection or improvement; in other words, the destruction of the old was a necessary element or part of the construction of the new. It all comprised one project. On the other hand, work or labor performed for the sole purpose of wrecking and removing an old building, with no definite and formed plan or intention of proceeding without delay or interruption with a new building, erection or improvement, as in the case of Holtzhaur v. Meer, supra, would not constitute a lienable claim, and for two reasons, first, because a lien cannot be established against a lot or land alone, and, second, the demolition would not be an integral and constitutive part of a fixed plan or project for enhancing the value of the land or lot by placing thereon a building, erection or improvement.
Our attention is called to the contrary ruling of the Supreme Court of the State of Washington in the case of Sound Transfer Co. v. Phinney Realty Inv. Co.,
In the case of Pratt v. Nakdimen,
In the case of Ketchum v. Land Title Trust Co.,
"The demolition of the dwelling house was a necessary precedent condition to the erection of the apartment house. The latter could not be built until the former was out of the way. The tearing down of the old house was more essential to the building of the new than would have been the digging of a cellar, for the new house might have been build without a cellar. The first step to be taken for its erection was the removal of the old dwelling which stood on the site selected for it. The situation here presented is not that of the removal of an old building, having no connection with the construction of a new one, for the removal was so linked with the work upon the new building as to become a part of one single operation."
In the case of Peaceable Creek Coal Co. v. Jackson,
"Where the removal of a building is incidental merely to a general scheme of improvement, it seems to be the rule that a lien may be acquired. [Pratt v. Nakdimen (Ark.), 138 S.W. 974; Chase v. James, 10 Hun. (N.Y.) 506; Allen v. Elwert,
"Where an old building is torn down for the purpose of erecting a new one, obviously a different case is presented. The demolition *541
becomes part of the work of erection, construction or repair, and the laborer is entitled to a lien. [Ward v. Crane,
In 36 Am. Jur., sec. 63, p. 53, after stating that the prevailing rule is that a lien cannot be acquired for removing or tearing down a building, proceeds with the following statement:
"But where one under contract for the erection of a building upon a site already occupied by another building, and by agreement with the owner, tears down and removes the old building, as a necessary step preparatory to the erection of the new building, it has been held that the labor so expended by him in its demolition and removal is performed or furnished in the `erection,' etc., of the new building, within the meaning and purpose of a statute of this kind."
To the same effect is the statement in 18 R.C.L., sec. 44, p. 914.
In 40 C.J., sec. 43, p. 69, the rule is stated as follows:
"No lien arises for simply tearing down a building or a part thereof; but, except in some jurisdictions where improvements for which a lien can properly be obtained are made, and the work of tearing down old structures or parts thereof, and removing the debris, is a necessary part of the making of the improvements, such work may be included in the lien, . . ."
And in the note following the case of Bon Marche Realty Co. v. The Southern Realty Co., supra, as it appears in 63 A.L.R. 1250, and on page 1256, we find the following comment:
"On the other hand, the majority of cases in which this question has been presented, and by what seems to be the more logical rule, hold that where one under contract for the erection of a building upon a site already occupied by another building, and by agreement with the owner, tears down and removes the old building, as a necessary step preparatory to the erection of the new building, the labor so expended by him in its demolition and removal is performed or furnished in the `erection,' etc., of the new building, within the meaning and purpose of a statute of this kind. [Pratt v. Nakdimen (1911), *542
Appellant argues that the cases above cited from other States, and which were cited in respondent's brief, are merely excerpts quoted in argument in the several cases. We do not so read the cases. The writers of those opinions were stating established principles of law which were applicable in the given case, and are applicable in this case. Hence, whether the statements did or did not come under the designation of obiter dictum, they are at least persuasive as showing the trend of legal thought of the several judges who have had the questions in mind.
In view of what we have said the judgment of the Circuit Court should be affirmed. It is so ordered. McCullen, J., concurs;Anderson, J., not sitting.