146 Mo. App. 554 | Mo. Ct. App. | 1910
This is a suit to enforce a mechanic’s lien against a hotel building and an acre of land on which it is situate in St. Louis county. The plaintiff recovered a personal judgment against the original contractor by default on his cause of action, but the court declined to enforce the lien against the property, the title to which now resides in the other defendant. The lien having been denied and judgment given for the defendant Trust Company of St. Louis County to that effect, plaintiff prosecutes the appeal.
It appears that plaintiff contracted with the defendant, Epworth Hotel Construction and Real Estate Company, a corporation, the owner, to furnish certain materials and perform certain services in and about the erection of a hotel of considerable proportions situated on a plot of ground in St. Louis county. The plaintiff fully performed on his part by furnishing the materials and labor which were employed in the construction of the building and there remained a balance due him on account of such materials and labor amounting to $772.77, for w'hich he duly and properly filed his mechanic’s lien and account in the office of the clerk of the circuit court of St. Louis county. Afterwards, and prior to the expiration of the time allowed plaintiff for the enforcement of his lien, the Epworth Hotel Construction and Real Estate Company, owner of the property, being in embarrassed circumstances, made a voluntary assignment of all its property including the hotel building, lands, etc., by competent deed, to the defendant Trust Company of St. Louis County, a corporation, for the benefit of creditors under the provisions of chapter 2, Revised Statutes 1899, An. St., chapter 2, 1906, concerning such assignments.
Our statute concerning mechanics’ liens, sec. 4207, Revised Statutes 1899, and in fact the entire mechanics’ lien act, contemplates that proceedings to enforce such
Under these authorities, the plaintiff, by voluntarily presenting his demand and obtaining its allowance before the assignee, precluded and forfeited his right to thereafter enforce a lien in a suit on the account for the reason, as we understand the doctrine, that he had extinguished the account which by the statute is a prerequisite as the basis to all future proceedings for the establishment of a lien to the end of securing its payment.
It appears the defendant Trust Company of St. Louis County is an incorporated trust company under the laws of this State; that it had qualified as such under the provisions of section 1438, Revised Statutes 1899, An. St., sec. 1438, 1906, by depositing with the insurance commissioner $200,000 in assets, approved by him and that it possessed all of the powers conferred on such companies by sections 1427 and 1438, Revised Statutes 1899, An. St., secs. 1427, 1438, 1906. Among the powers thus conferred upon trust companies is one to act as assignee under the laws pertaining to assignments for the benefit of creditors. [Sec. 1427, R. S. 1899, An. St. 1427, 1906.] It may be said that these facts were not shown by the best evidence of which their proof was susceptible, nevertheless they appear in the record. Besides an allegation in plaintiff’s petition to the effect that this defendant is a corporation organized under the laws of Missouri, there is substantial evidence tending to prove it was a trust company possessing, among other things, the power above mentioned. It is true the evidence on this score was introduced over the plaintiff’s objection. However that may be, no exceptions whatever appear to have been preserved to the action of the court in admitting the same and the rulings thereon will not be further noticed for that reason. It is sufficient in the present situation of affairs to say that together with the averment in the
The plaintiff argues, however, that even though the evidence referred to tends to prove the facts mentioned, it should have been excluded for the reason the averments of the answer in that behalf are insufficient. The theory is that unless it appears the trust company was an incorporated institution and duly qualified under the laws of this State to accept and discharge such assignments, the judgment given by it on plaintiff’s demand should be treated as coram non judice and therefore insufficient to preclude the enforcement of the lien. It is true the averments of the answer, in this respect are somewhat meager but in view of the fact that no exceptions were preserved to the introduction of the evidence thereunder the sufficiency of the answer must be ascertained with respect to the rule which obtains after verdict. The answer was not questioned by demurrer nor was there a motion filed to make it more definite and certain. Under these circumstances, it must be considered with reference to such aid as it received from admissions against the interests of the plaintiff contained in the petition and such reasonable implications as arise from averments contained in the answer as well. It is the rule in determining the sufficiency of a pleading after verdict that all necessary implications and reasonable inferences of fact must be allowed in aid thereof. [Thomasson v. Mercantile Town Mutual Insurance Co., 217 Mo. 485, 117 S. W. 1092; Thomasson v. Mercantile Town Mutual Insurance Co., 114 Mo. App. 109, 89 S. W. 564; Munchow v. Munchow, 96 Mo. App. 553, 70 S. W. 386.]
The answer avers the defendant to be the Trust Company of St. Louis County. Under the doctrine of
In view of the averment of the answer that the defendant is a trust company and the aider thereof found in the plaintiff’s petition to the effect that it is incorporated under the laws of this State, it certainly sufficiently appears to be aii incorporated trust company under the laws of Missouri. The court will take judicial notice of the fact that an incorporated trust company under the laws of Missouri is such only as is provided for in article 12, chapter 12, Revised Statutes 1899. This much conclusively appearing, other averments of the ansAver certainly imply that it had qualified as such trust company under the laws of this State to accept assignments and perform the- duties of an assignee. Other portions of the answer are replete in averment to the effect that defendant did accept and discharge the duties of assignee; that the plaintiff filed his claim and that same was duly allowed, etc.
The judgment should be affirmed. It is so ordered.