74 Mo. App. 343 | Mo. Ct. App. | 1898
— William H. Miltenberger, in March 1895, was the owner of a tract of land situated at the corner of Lindell Boulevard and Sarah street in the city of St. Louis, which he subdivided in nine separate lots and commenced the erection thereon of nine sopa
■ The extra material ordered on October 2, 22 and 23, was delivered at the factory of respondent on the date of these several orders, and the goods embraced in the original contract were delivered on October 22 along with the other goods ordered on that day. These separate bills, corresponding with the date of delivery of the goods were made out and sent to Boyce. Upon these bills was this memorandum: “Miltenberger job, Lindell and Sarah streets.” The following items embraced in respondent’s lien account were not used in any of the houses: “Marble backs for nine 20 x 24 x 10 Pink Tenn. Marble Slabs; one 16 x 18 N. P. Iron Bracket; 3 Enamel Sinks; 3 Painted Sinks, and 18 1-2 inch Full N. P. Bath Bibbs.” These items were either -returned to respondent or taken by Boyce to his shop and added to his general stock. The respondent kept a general running account with Boyce, and the bills for the Miltenberger job were entered on respondent’s ledger to the general account of Boyce containing many other entries, but these three bills were specifically designated by the words “Lindell
Nothing was said about a mechanic’s lien at the time of this transaction. The difference in the time in which the notes should mature was for the accommodation of Boyce, to make it easier for him to pay them. These notes nor any part of them were paid by Boyce, and on February 10, 1896, respondent notified Miltenberger of its intention to file a lien on all the buildings for the material used in their plumbing, and on the twenty-first of the same month it filed its lien (a blanket one on the nine houses). The lien account'is a consideration of the several bills furnished by respondent to Boyce, aggregating $859.59. Respondent in its contract with Boyce of the twelfth of September, agreed to deduct $10.86 from the bill for errors. This credit was not given on the lien account, nor was any credit given for merchandise returned. On May 15, 1896, respondent filed its petition in the circuit court, city of St. Louis, to establish
After Miltenberger began the erection of the nine houses, and after Boyce had begun the plumbing work on them, Miltenberger to raise funds for the completion of the house, encumbered all of them with one or more deeds of trust. Some of these deeds of trust had been foreclosed and Miltenberger had conveyed some of the property before suit was brought. It is admitted that the petition sets out correctly the ownership of each separate house and lot and the incumbrance thereon at the date of the filing of the petition with one exception. The exception is this. The petition alleges that the defendant * * * administrators of Mare Eidlitz, of New York, were the cestuis que trustent in the two deeds of trust on houses numbers 4125 and 4133. The facts are that Miltenberger and wife on June 27, 1895, executed two deed of trust to Joseph Dormitzer, trustee for the estate of Mare Eidlitz, for $8,000 each, one on number 4125, and the other on number 4133. Prior to the institution of the suit one of these deeds of trust had (by deed of assignment) been assigned to Robert J. Eidlitz, and the other (by deed of assignment) to Mathilda Eidlitz, which deeds. were executed by Otto, Robert and Mathilda Eidlitz, executors of the estate of Mare Eidlitz, both of which deeds of assignment were on record in the recorder’s office of the city of St. Louis when the petition was filed. Neither Robert nor Mathilda Eidlitz were made parties to-the suit. The deeds of trust to Dormitzer, trustee for estate of Mare Eidlitz disclosed the fact that
The court expressed the view that the only necessary parties to the suit to establish the lien, were the contractor and the owner of the buildings and grounds at the time the contract was made, and overruled the
“If the court finds from the evidence that the lien account filed by the plaintiff in the clerk’s office contains items of materials furnished to Arthur Boyce by plaintiff which were not used in the construction*350 of the nine houses'described in plaintiff’s petition, then plaintiff is not entitled to a lien.”
“The court declares the law to be that under the pleadings and evidence herein, plaintiff is not entitled to any lien.”
“The court declared the law to be that under the pleadings and evidence adduced, plaintiff is not entitled to any lien on houses No. 4125 and 4133 Lindell Boulevard, or the lots on which the same are situated.”
“If the court finds that the materials which the court believes from the evidence were furnished by plaintiff to defendant Boyce and which were used in the construction of the nine houses described in plaintiff’s petition, or any part thereof, were charged on plaintiff’s books to Arthur Boyce in a general running account with other materials purchased from time to time by said Boyce from plaintiff, and that on or about the first day of November, 1895, the balance owing by said Boyce to plaintiff on said general running account was $1,373.08, and that on the 19th day of November said plaintiff accepted from said Boyce for said general balance aforesaid, his promissory note, one for $673.08 and one for $700, and that the amounts of each said notes included in part charges for materials furnished to Boyce by plaintiff to be used in the construction of the houses described in the petition, and in part the value of materials sold to said Boyce by plaintiff for other purposes, then the plaintiff is not entitled to a lien on any of the property described in the petition.”
The court modified the last of the above instructions, and gave it in the following form:
“If the court finds that the materials which the court believes from the evidence were furnished by plaintiff to defendant Boyce, and which were used in*351 the construction of the nine houses described in plaintiff’s petition, or any part thereof were charged on plaintiff’s books to Arthur Boyce in a general running account with other materials purchased from time to time by said Boyce from plaintiff, and that on or about the 1st day of November, 1895, the balance owing by said Boyce to plaintiff on said general running account was the sum of $1,373.08, and that on or about the 19th day of November said plaintiff accepted from said Boyce for said general balance aforesaid his two promissory notes, one for $673.08 and one for $700, and that the amount of each of said notes included in part charges for materials furnished to Boyce by plaintiff to be used in the construction of the houses described in plaintiff’s petition, and, also, in part for the value of materials sold to said Boyce by plaintiff for other purposes and used by Boyce in other buildings, then the plaintiff is not entitled to a lien on any of the property described in the petition, unless the court further finds from the evidence that said notes were not received in payment by the plaintiff for said account, and that the same have not been tendered back to defendant Boyce.”
This evidence was excluded by the court, but as counsel on both sides admit the facts to be as stated, we accept this statement as correct, and treat the case as though these facts appear in the record. Neither Robert nor Mathilda Eidlitz was made a party to the suit. During the pendency of the suit these two deeds of trust were foreclosed and the numbers 4125 and 4133 were purchased by Hufft, who was made a party to the suit, but some time after the suit had been begun and more than ninety days after the filing of the lien account. Hufft purchased pending the suit and his interests are affected, if at all, by the status of these two numbers, in the suit at the date of his purchase. * * * Joseph Dormitzer, trustee of the Mare Eidlitz estate in these two deeds of trust, was made a party defendant as such trustee. As a general rule a trustee under a deed of trust does not represent the beneficiaries in a suit to establish or enforce a mechanic’s lien. Lumber Co. v. Oliver, 65 Mo. App. 435; Stafford v. Fizer, 82 Mo. loc. cit. 398. The beneficiary named in these two deeds of trust was the estate of Mare Eidlitz. This is not the name of a natural or artificial person, and hence no beneficiary is named in these trust deeds. Thomas v. Wyatt, 25 Mo. 24; Douthitt v. Stinson, 63 Mo. 268; Reinhard v. Lead Mining Co., 107 Mo. loc. cit. 624.
The deeds of assignment of these two deeds of trust by the three Eidlitz to two of their number and put upon record, was perhaps good in equity as among themselves, but they were not parties by name in the deeds of trust; so far as that instrument discloses they were absolute strangers to and without interest in it, and their assignment of its beneficial interest was inlaw a nullity, and the respondent was not required to take