Powers & Boyd Cornice & Roofing Co. v. Muir

146 Mo. App. 36 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— There are two questions in this case of importance, upon which its decision must turn. The first one is as to the sufficiency of the account filed in so far as setting out dates of the furnishing of the material and doing the work. As noted in the above statement, the only dates in the lien notice, which embraced the account, are February 28, 1904, as the date when the first item of labor and material was furnished, and the 20th day of December, 1904, as the date upon which the last item thereof was furnished. It will be remembered that the deed of trust was of date of March 7, 1904, so that it was given subsequent to the date when a right to the lien arose, and as the last item was furnished December 20th and the lien claim filed February 21, 1905, it was filed within the four months’ limit prescribed for the sub contractor. It is argued by counsel for the defendant, The Trust Company of St. Louis County — and when we use the term “defendant,” we refer to that company alone, as it is the only one of the defendants who appealed — that as the plaintiff was a subcontractor, he had but four months from the time of the last item was furnished or work done under the original contract and four months on any items outside of the original contract. Counsel then argue that counting back they find that October 21, 1904, is the crucial date and that unless the last item on both the original contract and on the account for' extras was furnished within those dates, there is no lien for that furnished on the original contract before October 21, 1904, if the last item under that contract was of date prior to October 21st, and that while the lien paper contains an averment that the last item of the whole account was furnished December 20th, it does not specify whether that item arose out of the original contract or on one or more of the four minor orders, hence counsel argue that the account is indefinite and uncertain and had in this lack of specified dates.

In Ittner v. Hughes, 133 Mo. 679, the account under consideration and which is set out with the accompanying statement in the notice at page 684, is in the exact condition of the account before us, with the exception that the account in the- Ittner case credits the cash in a lump sum without any dates whatever on which the payments were made, and the only dates in the lien notice are in the account found in the statement following the account, that “all of which work was done, and materials furnished between August 20, 1892, and March 1, 1893, the last thereof being done March 1, 1893.” At page 691, the court, Judge Barclay delivering the opinion, held that the objection to the account for lack of dates to the various items was not tenable. “The statement shows that the labor and materials were furnished between given dates, and that is a sufficient dating for the purposes of the lien account. . . ” A number of decisions are cited in support of this proposition. Later, in the case of Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, Judge Barclay again speaking for the court, held that an account is sufficiently specific, when it shows that the items of material were supplied between named dates, and that where the date of filing the lien was given, it was fairly to be inferred, when the dates between which the items had been furnished had also been given, and these dates brought the filing of the lien notice within the statutory period, that that was sufficient. These decisions settled this proposition against the contention of the appellant.

The more important propositions involved in the case is as to the description of the lots, as contained in the lien notice and as set out in the petition upon which the case was tried. Section 4203 of our Statutes of 1899 gives a mechanic or materialman a lien upon the 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 of 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 áre situated, to secure the payment for such work or labor done, or materials . . . furnished as aforesaid.” Section 4204 provides: “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 with the same,” shall be subject to the lien to the extent of the right of the owner of. the building therein, for whose immediate use the labor was done or the materials furnished. Section 4207 provides, among other things, that every person, other than the original contractor or day laborer, seeking to obtain the benefit of the provisions of the article, shall, within four months after the indebtedness shall have accrued, “file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” That this hotel building is upon these six lots and that while the lots are regularly laid out and platted in a named addition and that this named addition is not within the boundaries of any incorporated city, town or village, but lies wholly within the county of St. Louis, is not disputed. It is also admitted, by failure to deny the allegation in the petition, that these six lots are the same lots described in the deed of trust under which the defendant claimed, and in the deed under which its assignee Skinker claimed when he purchased as the agent of this defendant at the assignee’s sale, and that they are so described in those deeds. It is further alleged in the petition and not denied, that at that sale Mr. Skinker, as agent for the defendant Trust Company, purchased “subject to the deed of trust and to mechanics’ liens.” It is also beyond controversy in the case, that the area included within the six Jots is 60,000 square feet of ground. This is 16,800 square feet in excess of an acre or, approximately, one and one-third acres, or, according to counsel for appellant, the area of the six lots is “a little more that 1.35 acres.” It is very forcibly argued by the learned counsel for defendant that “the mechanic’s lien claim is void because it describes and demands a lien on more than one acre of land.” We are unable to accede to this proposition, as applicable to the facts in this case. The mechanics’ lien law, as all other statutes are supposed to be, was enacted by practical men for the use of plain, practical, everyday men. Our courts for many years past have repeated time and again that they are to be construed in a practical way and in a. liberal spirit, so as to give effect to the manifest intention of the lawmakers in enacting them. It is quite true, as said by these same learned counsel, that a number of refinements have been indulged in in several cases in the construction of these laws, that render it important that a party seeking the benefit of them should know the law and comply with its spirit. We-cannot, however, entirely agree with the contention of these learned counsel, that the refinements which the court has cast upon the law are so nice that the ordinary man, mechanic or materialman, cannot bring himself within their provisions. All that is required from this class as well as of all our people is that they should follow the plain reading of the law and when that is done the particular niceties of pleading are not required. The object of any particular provision of the law is the very life of it, and the main objects in our mechanics’ lien law are to secure the man who does the work or furnishes the material in the payment of his just claim therefor, and to advise the owner and all others having an interest in the property or apt to have interests in it, of the existence of the claim and of its amount, when it commenced and accrued, and the particular property which it is claimed is subject thereto. This notice to the owners and others is to be given by a paper to be filed of record. We will call it the lien claim.

In the Mitchell Planing Mill case, before referred to, Judge Barclay has said that this lien claim is not in itself a pleading under our law. All that is necessary therein is a substantial compliance with the statutory requirements. “The law intended to extend its benefits to laborers and all sorts of mechanics and materialmen who come within its protecting language. Of such it would be unreasonable to expect such an accurate and careful statement of account as might be required of an attorney in bringing an action. ... If the claim comes into court, it is then time enough to require all the particulars that may be necessary to maintain or defend the action.” That decision was rendered in 1896, hardly far enough back to be called an older decision, and in a very recent one, which we have before cited, Sawyer & Austin Lumber Co. v. Clark, supra, decided in 1902, Judge Gantt approvingly refers to the fact that, “It has often been held that this statute should receive a liberal construction to effectuate its remedial purposes.” No more recent decision, that we know of, has changed this rule. So that the very learned counsel for defendant are inaccurate in their statement that this rule of liberal construction, .which they say was announced in the old cases, “if ever true in fact, that time has certainly gone by; it is certainly not true now.” Our investigation satisfies us that the older decisions were more technical than the later ones, and that the trend has long been toward liberality of construction.

It has been determined in very many cases both in the Supreme Court and in the courts of appeal, that the object of giving the notice of the property to be charged with the lien, is to inform all those persons who are or may be interested'therein of that claim, and all that is required by section 4207, as above quoted concerning the description of the property, is that it is to be “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” It is to be noted that these two requirements, one that there must be “a true description of the property,” and the other requirement, “or (that the description shall be) so near as to identify the same,” are used not conjunctively but disjunctively; that is, the property must be truly described, or it must be described so nearly true, as to do what? — to identify the same.

In the Ittner case, before referred to, Judge Barclay holds that the petition in the case is subject to amendment as in other cases; that the plaintiff may withdraw a part of his claim for the lien, if by so doing he does not vitiate the effect of the demand on which he desires the court to proceed. If he can modify his demand, why not his description of the property, so long as the amended description keeps within the bounds included by the original description?

The principal case relied upon by counsel for defendant in support of their contention against a validity of the lien claim in describing an excess of one acre, is Ranson v. Sheehan, 78 Mo. 668. It is to be said of this that it has practically lost its force as a controlling decision by the criticisms to which it was subjected, first in the opinion of Judge Bond, in Sawyer & Austin Lumber Co. v. Clark, 82 Mo. App. 225, and next in that that criticism is concurred in by the Supreme Court, when the Sawyer-Austin case was taken there on a certificate of division from this court. The Supreme Court, in 172 Mo. 588; after setting out the opinion of Judge Bond in full, in unmistakable terms approved it, and while not expressly overruling, in our opinion distinguishing the Eanson-Sheehan case from the Sawyer-Austin case. So that the life of the Eanson-Sheehan case is practically destroyed, and what Judge Bond calls the “point in decision” is so limited as hardly likely to apply to any other case — certainly not to the case at bar.

We are referred to other cases in which our courts have refused to sustain descriptions in lien notices for lack of sufficient certainty in the description of the land, but an examination of these cases will show that the uncertainty of description was of such a character as to fail to locate the property on which the lien was desired, either truly or so near as to identify the same. In brief, there was nothing to aid a description or locate the acre. Thus, to say that an acre is claimed “out of forty acres of the northwest quarter of the southeast quarter” of a given section is no description whatever. That is the case of Williams v. Porter, 51 Mo. 441, the description being “a two-story frame dwelling house” “on the northwest quarter of the southeast quarter of section 11.”

In Wright v. Beardsley, 69 Mo. 548, the description was a “house situated near the northeast corner of the northeast quarter of the southwest quarter,” of a certain section, township and range in Audrain county.

In Ranson v. Sheehan, before referred to, the description was of fifteen and one-half acres of land, and the claimant asked for a lien to the extent of one acre, but did not describe the acre, or its location in the tract, so that irrespective of anything else that was said in the Eanson-Sheehan case and for which it was criticised in the Sawyer-Austin case, the facts on which the precise point in decision there rest bear no analogy to the facts in the case at bar.

On the other hand, in Oster v. Rabeneau, 46 Mo. 595, it is distinctly announced as a rule of decision, that where the description is sufficient for the purpose of general identification and sufficient to enable the court, by commissioner or otherwise, to make it exact in every respect prior to judgment, the lien is not void but is enforceable. It is true that the Oster case concerns a tract of land in a city, and the acre law does not prevail as to cities, and it is true that the case has been severely criticised on this point by counsel in very many cases, but save as in the Ranson-Sheehan case, it has been generally accepted by the courts as a correct exposition of the law, even when this particular part of it has been referred to as obiter. But notwithstanding that, no approved case has ever overruled the Oster case on this proposition now before us, and the spirit of it permeates all of the subsequent decisions of our Supreme and appellate courts when considered in the proposition here involved. It is also to be noted that in the Oster case, it appears that the county surveyor measured off the acre and that proof was made in court of his survey and the court adopted the survey so made by the county surveyor. But in criticism of the Oster case, or limiting its effect, it has been said that the county surveyor measured the acre under the direction of the court, and that the court had ordered the survey to be made by him. Prom this it has been claimed that parties' themselves cannot, either before or after suit brought, have another, even the county surveyor, go upon the land and make, the survey, because the survey is not made under the order of the court, and because the party ordering it, after the completion' of the work had no business upon the property. It strikes us, this is hypercritical and is also outside of the facts in the Oster case. It does not appear in that case that the county surveyor was ordered to make the survey by the court. The statement is that the county surveyor measured off the acre and, on proof being made of that fact in court, the court adopted the survey and rendered judgment thereon. That is the precise situation in this case, and there is not a hint in the evidence here before us that the defendant or any one else objected to the county surveyor of St. Louis county going upon these premises and measuring off the acre, or that his measurement was incorrect, or unofficial. His measurement was verified in court; he testified as to, its correctness, both as to courses and distances and area, and the court adopted that. Herein the facts in this case are entirely different from the facts as stated by Mr. Commissioner (now Judge) Philips, in the Ranson v. Sheehan case. Judge Philips says in the Eanson case, that the indefiniteness of the description in the lien notice was sought to be remedied by the plaintiff in that case joining with another alleged lienor, “in going, after suit was instituted, on the land and by survey definitely ascertaining the acre on which the house stood, and then setting out this acre in his amended petition.” Eeferri'ng to the Oster case as a supposed authority for that, Judge Philips says that in the Oster case a ministerial officer or agent “designated by the court” had made the survey. We find in the report of the Oster case no support for the statement that the surveyor who made the survey “had been designated to make it by the court or was the ministerial officer of the court.” The statement of fact in the case by Judge Currier is that the survey in question in the Oster case was made by the county surveyor and we fail to find any suggestion in the statement of the case that he had been ordered to make the survey by the court. It appears, therefore, that in the Eanson case the survey made was a private survey, whereas in the case at bar, as in the Oster case, the survey was made by a public officer, the county surveyor. In a case before this court, Othenin v. Brown, 66 Mo. App. 318, Judge Rombauer expressly affirms the doctrine both of the Oster case and of the case of DeWitt v. Smith, 63 Mo. 263, in which latter case, the opinion written by Judge Wagner, the principle announced in the Oster case is distinctly affirmed, namely, that a description is not void because the property described embraced more than one acre. In the DeWitt case, while the lots in the city upon which the erection and improvements had been made were correctly designated, a wrong block number was given, but the Supreme Court held that all that was required of the description was to sufficiently identify the property and inform the defendant to what the lien was intended to apply. The Oster case was again specifically affirmed on this proposition in the case of Bradish v. James, 83 Mo. 313.

In Hammond v. Darlington, 109 Mo. App. 333, which was for property in the city of St. Louis, but the property not divided into lots, and in which it was claimed that the lien was void by reason of a misdescription of the property, this court, through Judge Reyburn, held: “It has already been determined in proceedings of this nature, but it is not indispensable, that the description should be complete or precise, but it is sufficient that the description adopted points out and indicates the premises so that the land can be found and identified.”

Can it possibly be claimed that by this notice, or lien claim, even if it specified the whole of these lots, which as seem embrace about thirty-five hundreths in excess of one acre, anybody was misled? It gives the numbers of the lots and it gives, by name, the hotel constructed on it, “Hotel Epworth,” and locates it on these lots, and as in Rosedale Addition, an addition laid out in a known and designated survey of St. Louis county, even the block number of the subdivision is given. Whether .the plaintiff claimed more than the law gave him or whether he claimed in excess of what the lien law says he shall have, certainly cannot be held to have misled anybody or to have vitiated the lien. No matter how much he claimed, he could only secure a lien upon one acre and that the one acre upon which these buildings were situated. It is a curious anomaly in our law to note in this connection that inasmuch as this property" is in the county and not in an incorporated city, town or village, if the buildings had happened to extend over more than one acre, although comprising one building, built under one contract, according to the letter of the law, the mechanic or materialman or contractor could only have a lien on so much of the building as covered the one acre, and in this very case this is illustrated by the fact that a portion of the boiler house to the rear ' of the building and which extends over the lot line into the alley was not embraced in the lien which the court awarded because to have done so would have taken in more than one acre. But so is the law; but one acre can be included in the lien when the lien is established by the court. As before remarked, and we repeat it, that while it is the recognized law of this State that the lienor must stand or fall by the lien which he files, it is not the plain drift of judicial decision in this State, as argued by counsel for the defendant, that the tendency and drift of the judicial decisions of the State is to enforce the statute literally when to do so prevents its obvious intent. To the contrary, the later decisions, some of which we have cited, and the more numerous ones are to the effect that the statute is to be given a liberal construction, as we have before noted, in order to effectuate the plain purpose of the statute.

Nor can it be possible that this defendant, the Trust Company or any one else, was in any way injured, surprised or misled by the assertion of this claim, or by the fact that the lots described included a fraction over an acre. It is averred in the petition that when the defendant’s agent, Mr. Skinker, bought in at the assignee’s sale, that he bought subject to the deed of trust and to mechanics’ liens. The deed of trust itself was made, executed and recorded after the work was commenced and the materials furnished for which this subcontractor plaintiff has made his claim. The whole world was bound to take notice of the date of commencement of construction of this work. The very deed of trust and the assignee’s deed to Mr. Skinker, as appears by the admissions in the pleadings, describes these lots in exactly the same manner as they are described in the lien claim. The lien claim states that it was based on the construction of the Hotel Epworth, and no matter what the lien notice said about the area included, the whole world was bound to take notice that a lien on county property could only include one acre, so that on no possible theory that we can arrive at is this a case of any one being misled or of any injury or hurt being done to this defendant or any of its rights interferred with. We can well apply to this case and to this class of cases-the time-honored maxim, “Id' certum est quod certum reddi potest,” in the ascertainment of the bounds of the acre. On this branch of the case, therefore, we see no reason to hold that the lien claim filed, inasmuch as it embraced thirty-five hundredths of an acre in excess of one acre, was thereby void, as it was entirely practicable for the court to ascertain and satisfy itself, from the description furnished in the notice itself, as it did here, of the location on the lots of the acre on which the lien was entitled to be enforced under the law, and having done so, the court awarded the lien on this one acre alone, discarding from consideration and from judgment the trifling excess.

There remains the proposition as to the sufficiency of the evidence of the loss of the papers evidencing the bid and acceptance thereof under which the subcontractor did the work and furnished the materials in suit. It is to be remembered that this was a case which was tried before the court without a jury, and the same strictness and particularly in testing the correctness of the action of the judge in the admission and exclusion of testimony is not applied in cases determined by the court as in cases tried before a jury. It is to be presumed that even if a court admits some evidence that in a trial before a jury would not be relevant or competent or the best evidence, that the weight of that testimony is determined by a judge learned in the law and in the application of the law to the facts in evidence. Such, is not the case when the trial is before a jury, which can only know of the competency, relevancy and materiality of evidence, by its admission by the court. When the court admits it, the jury is bound to take it as relevant and competent. When 'the court, without a jury admits it, it does not follow that he is bound by it as relevant or competent; that is to say, his subsequent judgment may show that he has not been led into error by it. We do not mean to say that a court, in disregard of all rules of evidence, can admit everything or exclude everything offered; but within reasonable bounds and where no obvious error is committed, a court, trying a case, a jury being waived, has much more latitude in the admission and exclusion of evidence than when a case is tried and is to be determined by a jury. We think the court committed no reversible error in the acceptance of the evidence on this point.

The proposition of defendant’s counsel, that the court erred in overruling the motion of defendant to require plaintiff to elect upon which of its causes of action it would proceed, and dismiss as to the other causes of action is untenable. There are not two causes of action here presented. This- action is on a claim of a lien for work and labor done and material furnished under one contract for the erection of the building, and the addition of items outside of the original contract, extras, in no manner split up the cause of action or required its division into separate counts.

We see no error of law in this case, either in the admission of evidence or in the conclusion arrived at by the trial court, to the manifest prejudice, harm and injury of the defendant. Our conclusion is that the* finding and judgment of the trial court is for the right party, is correct on the facts and on the law, and it is affirmed.

All concur.