169 Mo. 236 | Mo. | 1902
— This is a subcontractor’s mechanic’s lien suit to establish a lien on a lot on the corner of Fifteenth and Olive streets, in St. Louis. There was a verdict and judgment for the plaintiff, and the defendants appealed.
Briefly stated the facts are these:
On April 16, 1898, the Van Eaalte Investment Company owned the said lot, on which there was a partially erected building, that is, the foundations and the walls up to1 the second story were built. This company had a capital stock of fifty thousand dollars, which was held as follows: Simon Van Eaalte and Julius Van Eaalte, two hundred and forty nine shares each, and Morris Van Eaalte, two shares. The property was yielding no revenue, and the company was anxious to complete the improvements. Accordingly, Simon Van Eaalte consulted McCullv as to what character of building could be constructed that would be most profitable. After
Thereafter on October,!, 1899, Thomas H. West and Wm. L. Huse forfeited the second lease to the Emma Building Company for non-payment of the installment of rent that fell due on August 1, 1899, and being the second installment of rent under the new lease. The McCully Stone M.ason Company, the Emmia Building Company, the Van Raalte Investment Company, and West and LIuse' are the parties defendant, but only the Van Raalte Investment Company and West and Huse have appealed. The judgment was for $4,801.50. It was personal as to the McCully company, it -was against the leasehold in the land and all the right, title
I.
The sole legal question involved in this appeal, is whether the facts stated make out a prima facie case for the plaintiff to go to the jury upon, of a right in-the plaintiff to a mechanic’s lien against the fee simple title to the land.
Appellants do not deny that the personal judgment against the MeCully company, and the mechanic’s lien against the leasehold interest of the Emma Building Company, are proper and justified by the evidence. If it be true that the unfinished building was sold by the Van Ráalte company to the Emma, company, for $65,000, before any work was done by MeCully under his contract with the Emma company, then it would seem quite immaterial to the plaintiff, from a financial point of view, whether the lien attached to anything more than the leasehold interest or not, for the plaintiff’s judgment is for only forty-eight hundred dollars, while the improvements are worth much mlore than that. It may be, though it is not shown by this record, however, that there are other liens with which the plaintiff might have to prorate, and that the aggregate of all the liens would exceed the value of the improvements and the leasehold estate. At any rate, the legal question is properly presented and must be decided.
It is true, as appellants contend, that a right to a mechanic’s lien is conferred by our statutes only upon such persons as sustain a contractual relation, direct or sub modo, with the owner of the land or the interest in the land sought to be charged. But it is also as true of mechanic’s contracts as it is of ordinary contracts, that the owner need not necessarily contract in person, but may bind himself just as
The most recent case in this State bearing upon the question in hand is Kuenzel v. Stevens, 155 Mo. 280. In that case a husband made a contract in his own name for the erection of,a house upon his wife’s land. The suit was to establish a mechanic’s lien on the land on the theory that the contract, though in the husband’s name, was really the wife’s contract, she being the undisclosed principal for whom the husband acted as agent. Valliant, L, delivering the opinion of the court, said: “Although he acted in his own name, yet if he was really acting by authority of his wife and causing the house to be built on her account, he was in legal contemplation her agent.” The opinion then points out the conduct of the wife with respect to the work of constructing the building, which applies to the case in hand so aptly that the following excerpt is taken therefrom:
“The testimony for plaintiff tended to show that Mrs. Stevens exercised a good deal of authority in the plans and construction of the building. Whether these acts of hers were by permission of her husband, and attributable" to-a wifely interest in her husband’s affairs, or were from a conscious assertion of her own rights, the trial judge and jury had to • decide from the circumstances. Mr. Stevens engaged the .architects, and as between them nothing was said as to the ownership of the property, but before the drawings were concluded Mrs. Stevens saw the architects, discussed the plans and details, and gave them her views. When the contractors were ready to begin, she requested that the work of ex
In Burgwald v. Weippert, 49 Mo. 60, the contract was made with the husband for a building upon the wife’s land. The action was against the husband and wife both, and for the establishment of a lien on the land. The plaintiff recovered a personal judgment against the husband and wife both, and a mechanic’s lien judgment against' the land. The defendants appealed. This court said:
“Defendants object to the record, first, because the petition shows that the contract was made with the husband and not the wife, to whom the land belonged. The contract must have been made for her use, as the house was to be erected on her land, a*nd, hence, comes within the express provisions of section 21, chajjter 195, General Statutes 1865 (Wagn. Stat.,
It is useless to multiply precedents. The trial court instructed the jury on this branch of the case as follows:
“8. The court further instructs you, the jury, that if you believe and find from the evidence, that the completion of the building and improvements described in said mechanic’s lien read in evidence, was for the immediate use, enjoyment and benefit of the Van Raalte Investment Company, and that on the sale and transfer of the uncompleted building mentioned in the evidence, as it stood on April 16,. 1898, by the Van Raalte Investment Company to the Emma Building Company, and the execution of the lease read in evidence of the same date, it was the intention, purpose and understanding, both on the part of said Van Raalte Investment Company, and said Emma Building Company, that the latter should complete said building and that said completion of said building was done in pursuance of such intention, purpose and understanding that said building should be completed by said Emma Building Company for the immediate use, enjoyment and benefit of said Van Raalte Investment Company, then you will find that the- plaintiff has established its mechanics’ lien for-the sum of $4,605.55 and interest thereon at the rate of six per cent per annum, from' June 1, 1899, against the fee simple title to, the real estate described in said mechanic’s lien as to the interest therein of the said Van Ráalte Investment Company and that of Thomas H. West and William L. Huse.”
The instruction for the plaintiff, above set out, is assigned as error, in that it does not require the jury to find that a contractual relation existed between the Van Raalte company and the plaintiff, and it is strenuously insisted that the case was not tried by the plaintiff in the circuit court upon the theory of an undisclosed principal.
The use of the term “for the immediate use, enjoyment and benefit” of the Van Raalte company, used in the instruction, was evidently takeq from the language of this court in Burgwald v. Weippert, 49 Mo. 60, above quoted. In that case it was said: “Where it is manifest that the' building was erected for the immediate use, enjoyment or benefit of a particular person, that person, within the .meaning of the statute concerning mechanics’ liens, is to be regarded as the ‘owner or proprietor thereof.’”
The instruction does not in so miany words t.ell the jury the principles of law involved in the doctrine of an undisclosed principal'. Nor would it have been proper to have done so in legal phraseology. It did tell the jury in commonplace, easily-understood language, that if they found from the evidence thát it was in reality the Van Raalte Investment Company that was constructing the buildings, and that the lease to the Emma company and the making of the contracts by the Emma company was only a cover and that it was all done for the immediate use, enjoyment and benefit of the Van Raalte company, then the plaintiff is entitled to a lien ón the fee. In other words, the legal effect of this instruc.
There was no error in the plaintiff’s instruction, and that instruction predicated a right to a lien on the fee upon the.doctrine of an undisclosed principal. In fact that is the whole theory and genius of the plaintiff’s case.
It only remains to consider whether the facts made out a prima facie case for the plaintiff, for, of course, the burden of proof rested upon the plaintiff to* prove that the Van Raalte Company was really the principal in all these transactions. [Norton v. Clark, 85 Me. 357.]
The facts shown in this case are quite as strong as those shown in Kuenzel v. Stevens, 155 Mo. 280, above quoted. It is only necessary to group a few of the facts and circumstances shown in this ease to' justify the verdict. It is perfectly apparent that the Emtaa Building Company'was organized solely for the purpose of making the lease to it and having it make the contract to build the improvements, and that it was in reality the alter ego of the Van Raalte Investment Company. This is clearly shown by the. fact that although the Van Raaltes owed a majority of the stock of the Emma company, they elected the minority stockholders the directors and officers of the company. • Persons who have in good faith invested seventy thousand dollars cash in a business corporation do not usually permit other persons who have invested only fifty-five- thousand dollars therein to take all the powers and offices and honors. It may be possible, but it is hard to bélieve, that the Emma company paid the Van Raalte company sixty-five thousand dollars for the un
According to the record, the Emma company’s new lease was forfeited for the non-payment of the second installment of rent .that fell due on August 1, 1899. This was not surprising, considering it had nothing on earth to pay rent with, when the new lease was executed. But the transaction figures up this way: the Emma company was organized April 15, 1898, with a paid up capital of $125,000. It paid the Van Raalte company $65,000 for the unfinished improvements on tire land and took a lease for ninety-nine years at $12,000 a year. It contracted with McCully to pay him over sixty thousand dollars to nearly complete the buildings according to the plans the Van Raaltes had adopted before the Emma company was organized. The Emma company did not in terms agree- in the léase to construct the buildings, but Mc-Cully testified that Simon Van Raalte, the president of the Van Raalte Investment Company, told him the Emma Building Company was organized solely for the purpose of completing the building for the Van Raalte company. On May 1, 1899, just a few days more than a year after the Emma company was so organized with a capital stock of $125,000, the lease is forfeited, the improvements it paid $65,000 for pass back to the seller, with $60,000 more added to them. It
Now, turn the camera and view the picture from! the other side. The Van Eaalte Investment Company had a capital stock of $50,000, owned all except two hundred dollars by the same Van Eaaltes who put their seventy thousand dollars into the Emma Building Company. The Van Eaalte Company owned the land and the unfinished buildings. It sold the unfinished buildings to the Emma Building Company for $65,000 and leased the land to that company. After the Emma company had spent $60,000, the remainder of its capital, in completing the buildings, it forfeited the Emma company’s lease, and thereby reacquired title to the improvements it had sold to the Emma company for $65,000 plus the $60,000 spent by the Emma company in completing the building, plus whatever else remains due the plaintiff and possibly other creditors for work done on the building. Then the Van Eaalte company made a new lease to the bankrupt Emma company. Then it sold the land, buildings and all to West and Huse for $220,000, subject to the last lease to the Emma company, and. that lease is forfeited in less than six months for non-payment of the second installment of rent thereunder.
The result is that in eighteen months the Emma company, with a cash capital of $125,000, is wiped off of' the business map, and the Van Eaaltes’ investment of seventy thousand dollars cash is forever gone. On the other hand, the Van Eaalte Investment Company, with a capital stock of fifty thousand dollars, .all except two hundred dollars of which was owned by the Van Eaaltes, gets sixty-five thousand dollars for the unfinished buildings from the Emma company, then regains title to the same improvements and the