Anchor Lumber Co. v. United Exteriors, Inc.

604 S.W.2d 754, 1980 Mo. App. LEXIS 2744
CourtMissouri Court of Appeals
DecidedAugust 12, 1980
DocketNo. 40441
StatusPublished
Cited by4 cases

This text of 604 S.W.2d 754 (Anchor Lumber Co. v. United Exteriors, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anchor Lumber Co. v. United Exteriors, Inc., 604 S.W.2d 754, 1980 Mo. App. LEXIS 2744 (Mo. Ct. App. 1980).

Opinion

SATZ, Judge.

Defendants, E. A. Custer and Judith K. Custer, husband and wife, appeal from a judgment enforcing a mechanic’s lien against their property. We affirm.

This case was tried upon a stipulation of facts. By written contract, defendants employed United Exteriors, Inc. (United), a general contractor, to build a cedar deck on to defendants’ residence. Plaintiff Anchor Lumber Co., a supplier, furnished building materials to United. At the time the contract between United and defendants was executed, United owed plaintiff approximately $2,600.00. Nonetheless, plaintiff extended United additional credit and furnished United additional materials. Shortly after United entered into the contract with defendants, United affixed a “Notice to Owner” to the contract, informing defendants that the failure of a contractor to pay laborers and suppliers could result in the filing of a mechanic’s lien, that the lien could be avoided by obtaining “lien waivers” and that failure to obtain “lien waivers” could result in the labor and materials being paid for twice. Defendants paid United for the construction of the cedar deck, but United failed to pay plaintiff for the materials supplied and used. Plaintiff perfected a mechanic’s lien under Chapter 429, RSMo 1978, and a judgment was entered enforcing the lien against defendants’ property.

In their first attack against the judgment, defendants advance an admittedly novel theory. Defendants concede that a materialman has the statutory right to enforce a lien against property for payment of materials supplied to a contractor and used on the property in question. However, defendants urge that a materialman should owe the property owner a duty which parallels the materialman’s right to enforce its lien. According to defendants, a material-man should owe the property owner the duty to exercise reasonable care in extending credit to the contractor,'and, defendants reason, the materialman’s breach of this duty should operate as a bar to the enforcement of the materialman’s parallel right to enforce its lien. In the instant case, defendants argue, plaintiff, a materialman, owed defendants, property owners, the duty to exercise reasonable care in extending [756]*756credit to United, a contractor; plaintiff breached this duty; and, therefore, plaintiff’s lien against defendants’ property should not be enforced.

Defendants contend that neither the purpose nor the language of our lien statutes preclude the imposition of this duty or preclude the use of the breach of this duty as a defense. On the contrary, defendants argue, our courts use equitable principles in interpreting and applying our lien statutes in order to do substantial justice between the parties and will not enforce the lien when a materialman is at fault. For example, defendants point out, our courts recognize waiver and estoppel as proper defenses to the enforcement of a mechanic’s lien. Since these defenses are based on fault, defendants argue, the fault of negligently extending credit should likewise be a defense. We disagree.

Contrary to defendants’ conclusion, imposition of a duty on plaintiff to exercise reasonable care in the extension of credit is inconsistent with the purpose of the lien statutes. The purpose of the lien statutes is to encourage construction by protecting materialmen from non-payment. E. g., Putnam v. Heathman, 367 S.W.2d 823, 828 (Mo.App.1963). The right created to insure this purpose is given to the materialman who has furnished material to “improve” property, and this right permits a material-man to enforce a lien against the “improved” property. Putnam v. Heathman, supra at 828. The correlative duty created is the duty imposed upon the property owner to make certain that payment has been made for all materials delivered to the job. Defendants’ theory would turn the materi-alman’s statutory right and the property owner’s correlative duty on their respective heads and create a statutory right in the property owner and impose a correlative duty on the materialman where no such right or correlative duty exists. Moreover, the statutes determine the class of persons to be protected and the hazard to be protected against. We cannot change the class or hazard. See, Kavanagh v. Dyer O’Hare Hauling Co., 189 S.W.2d 157, 160 (Mo.App.1945); see also, State of Mo. ex rel. Zoological Park Subd., St. Louis v. Jordan, 521 S.W.2d 369, 372 (Mo.1975). Materialmen are the class protected by the lien statutes and the hazard they are protected against is non-payment. Defendants as property owners are not within the class protected and the hazard defendants seek protection for is not the hazard protected by the statutes. Therefore, their theory of defense has no statutory basis. See, Purdy v. Foreman, 547 S.W.2d 889, 892 (Mo.App.1977); see also, Sayers v. Haushalter, 493 S.W.2d 406, 409 (Mo.1973).

Defendants’ reliance on equitable principles is also misplaced. Arguably, there are equitable principles inherent or implicit in our lien statutes. Johnson v. Brill, 295 S.W. 558, 562 (Mo.1927). Thus, the right to enforce the lien may well reflect the equity of paying for work done and materials delivered, or, legally more precise, may reflect the equitable principles of restitution or unjust enrichment. These principles merely underpin the court’s liberal construction of the lien statutes when necessary to secure payment by enforcement of a materialman’s lien. Peerless Supply Co. v. Industrial Plumbing & Heating Co., 460 S.W.2d 651, 657-658 (Mo.1970); State ex rel. Erbs v. Oliver, 237 S.W.2d 128, 132 (Mo. banc 1951). Logically, these principles would work against defendants’ proposed derogation of the right to enforce the lien. For this reason, apparently, defendants use other equitable principles to support their theory of defense. Admittedly, as defendants point out, a materialman may waive his right to enforce a mechanic’s lien, by an intentional act or statement, see, E. C. Robinson Lumber Co. v. Ladman, 255 S.W.2d 72, 76 (Mo.App.1953), or, he may be estopped from enforcing this right, if his statement or act is inconsistent with the enforcement and the property owner acted upon the statement or act to his detriment. See, Peerless Supply Co. v. Industrial [757]*757Plumbing & Heating Co., supra at 665-667. However, each of these defenses grows out of principles which are separate and independent from principles embodied in the lien statutes and these defenses may be used against the enforcement of any right. Neither defense is explicit nor peculiarly implicit in our lien statutes. There is nothing in the lien statutes which would permit us to limit plaintiff’s right to enforce its lien by imposing a parallel duty on plaintiff requiring it to exercise reasonable care in the extension of credit to the contractor.

To the contrary, under the lien statutes, plaintiff, as a materialman, is not compelled to evaluate the credit of the contractor.

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Bluebook (online)
604 S.W.2d 754, 1980 Mo. App. LEXIS 2744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anchor-lumber-co-v-united-exteriors-inc-moctapp-1980.