Carroll Contracting Co. v. Newsome

210 S.W. 114, 201 Mo. App. 117, 1918 Mo. App. LEXIS 184

• Court: Missouri Court of Appeals
• Decided: November 6, 1918
• Status: Published

Opinion

REYNOLDS, P. J.

— Plaintiff, respondent here, brought his action against one Newsome for certain excavation work done in the cellar or basement of a building proposed to be erected in the city of St. Louis, and to establish a mechanic’s lien against the owner of the land, Merchants & Consumers Market House Association, the latter hereafter referred to as the Market House Association. His petition is in two counts. The first is on quantum meruit, the second on contract. The .amount claimed under each is $4672.42.

At a trial before the court, a jury having been waived, the court found for plaintiff against the defendant Newsome on the second count of the petition in the sum of $4667.42, principal and interest, the latter from Octoober 14, 1914, to June 14, 1915, and adjudged it to be a lien against the property of the defendant Market House Association, finding for the defendant on the first count of plaintiff’s petition.

Filing a motion for new trial and excepting to the action of the court in overruling it, the Market House Association has duly appealed. Defendant Newsome did not appeal.

The second count sets out that plaintiff and the defendant Newsome entered into a contract to the effect that the plaintiff should and would provide all the materials and perform all the work in the excavation for the building known as the Merchants & Consumers Market House Association Building, and that the plaintiff should receive from defendant Newsome, for such work and labor the sum of $6328, said work to be done in accordance with the drawings and specifications prepared for said building by C. B. Yoder & Company, architects; that thereafter, and about September 15th, plaintiff, in performing the contract, commenced the work of excavating for the building, in accordance with the drawings and 'specifications, on the lot described, upon which the proposed market house building was to be erected and constructed, and that continuously from and after September 15th, up to and including October 7, 1914, plaintiff did and performed the work and labor in and about the excavation for the building and duly performed all the conditions of the contract on his part to be performed, up to and including October 7, 1914; that plaintiff had excavated and removed from the excavation for the market house building 13,514 cubic yards of earth, the work having been done down to and including October 7, 1914, being and amounting to eighty-nine and nine-tenths per cent, of the entire amount of work required to be done under and in accordance with the terms of the contract between plaintiff and defendant. Then follows the itemized account. This consists of items commencing with the date September 15, 1914, and including that date ends with and includes October 7th of the same year, showing the number of hours of labor thus:

“Foreman . 20 hours

Laborers . 60 hours

Steam Shovel . 10 hours

Wagons .. • ..70 hours

Teams .70 hours

Superintendant .... . 10 hours.”

No amount is given as showing the charges per hour.

In addition, under date of October 7th, is the item, “6750 feet of lumber for runway, supplies for pipe line, hose, pipe and fittings,” and closes with this entry:

“Total price for excavation done, .... $5,688.87

By cash paid on account by W. D.

Newsome, September 30th, 1914.$1200.00

Balance due. $4488.87.”

Following this it is set out that it was understood between Newsome and plaintiff that plaintiff was to receive payment from Newsome every two weeks 'for the work it had completed, less fifteen per cent, of the amount due according to the estimate of the architects in charge of the building and work. Averring that New-some had paid $1200 of this on account and no more, it is averred that the balance due, according to the terms of the contract, amounted to $4488.87, which Newsome had refused and neglected to pay, and that on October 7, 1914, Newsome abandoned his contract and refused to perform any of the conditions thereby imposed upon him although plaintiff was ready, willing and able to complete the excavation required for the erection of the proposed market house. Averring that the sum charged is the reasonable price and valne of the work, it is averred that the balance is. still dne. It is further averred that this work and labor was done and performed in and about the excavation for the basement of the market house building proposed to be erected on the land described, and that at that time and when the work was done, this land was the property of the Market House Association; that Newsome was the original contractor with defendant Market House Association for the excavation required in the erection of the market house proposed to be erected upon the described lot; that the demand became due on October 7,1914. Following are averments showing filing of lien, due notice, etc., and judgment is demanded for $4488.87, with interest at the rate of six per cent per annum from October 7, 1914, and costs and that it be declared a lien against the property described.

Newsome filed an answer, denying each and every allegation contained in the petition, and all knowledge or information sufficient to form a belief thereof and prays judgment. A motion to strike this out was filed ,and overruled.

The defendant Market House Association filed a demurrer to the petition, which was overruled and exceptions saved. It then filed an answer, denying all the allegations of the petition. Subsequently it filed a motion to elect between the two counts, averring that the first was on a quantum meruit and the second,upon a contract. This was overruled, defendant excepting.

The deposition of defendant Newsome was taken in the case and filed and read by plaintiff at the hearing.

The articles of association of the Market House Association were in evidence, by which it appeared that it was formed for the purpose of erecting a market house, the corporation incorporated with a named capital of $125,000, divided into 1250 shares, of which Diesing owned 646 shares, his wife, brother-in-law and other parties owning a share each, Victor Diesing and these parties being named as the first board of directors, Diesing being president.

Plaintiff, to sustain the issues on his part, introduced an agreement, of date September 14, 1914, between itself, a corporation, as party of the first part, and W. D. Newsome, party of the second part, for doing the excavating for the price and sum of $6328. Plaintiff then introduced in evidence an agreement of date September 12, 1914, between Victor Diesing and the' Merchants & Consumers Market House Association, parties df the first part, and W. D. Newsome, as party of the second part, which reads:

“This agreement entered into this 12th day of September, 1914, between Victor Diesing and the Merchants & Consumers Market House Association, a corporation, parties of the first part, and W. D. New-some, party of the second part, witnesseth:'

“1st. The parties of the first part hereby grant unto the party of the second part the right to begin, and to continue until the 12th day of October, 1914, the excavation required in the erection of a market house proposed to be erected on the property of the parties of the first part, situated on the north line of Laclede Avenue one hundred and fifty (150) feet west of the west line of Vandeventer Avenue in the city St. Louis; said excavation to be made in accordance with the plans and specifications hereto attached and made a part hereof.

“2nd. The party of the second part agrees to pay the entire cost of such excavation, and shall save and hold harmless the parties of the first part from all claims, liens or demands which may in any way arise from the prosecution of the work of excavation hereby permitted, including all claims for damages of every kind, nature or description which may be made against the parties of the first part, or either of them, in any way arising from the making or maintaining of said excavation on said property.

“3rd. The making of this contract by the parties, hereto and the prosecution of the work of making said excavation by the party of the second part shall in no wise be construed as giving to the party of the second part any rights in and to said property except such as are herein defined.

“4th. Nothing herein contained shall be construed as- preventing the party of the second part from being reimbursed by the Merchants & Consumers Market House Association for his expenses in connection with the making of said excavation if said party of the second part and his associates should secure control of said Merchants & Consumers Market House Association under the option contract now existing between the party of the second part and the said Victor Diesing.

“5th. The party of the second part agrees to furnish to the parties of the first part a good and sufficient bond in the sum of six thousand dollars ($6000.00), to secure to the parties of the first part the performance by the party of the second part all the terms of this agreement by the latter to be performed.

In witness whereof, the parties hereto have executed this instrument this 12th day of September, 1914.

(Signed) Victoe DiesiNg

Merchants & Consumers Market Association.

By (Signed) Victos Diesotg, Pres.,

Parties of the first part.

(Signed) W. D. Newsome,

Party of the second part.”

It was also in evidence that Newsome had given a bond to Diesing and to the Merchants & Consumers Market House Association in the penal sum of $6000¿' conditioned that as Newsome had entered into an agreement with Diesing and the Merchants & Consumers Market House Association, whereby he had agreed and bound himself to hold harmless the said Diesing and Market House Association from all claims, demands, liens or damages arising from the making and maintaining of an excavation in the contract above set out. The' American Surety Company of New York is surety on this bond.

Evidence was introduced showing the amount of work that had been done, its value and its proportion to the whole work to he done.

At the conclusion of the introduction of the evidence in the case the Merchants & Consumers Market House Association demurred to the evidence, asking a peremptory instruction to the effect that under the law and the evidence ‘ plaintiff was not entitled to a special judgment establishing a lien against the property. The court refused this, this defendant duly excepting. Motions for new trial as well as in arrest were filed by this defendant and these being overruled and exceptions saved, the appeal followed.

A member of the bar of our court, by leave, filed a brief with us in the name of the defendant Market House Association, that counsel representing the surety company named. It had not been represented at the trial.

It is objected by leained counsel for respondent that as the principal point raised by this counsel in his brief is not included in the brief of counsel of record for the appellant, nor in his assignment of errors, and was not specifically mentioned at the trial of the cause, that we are not to consider this brief nor the points made in it. The principal point there made and relied on by that counsel as Amicus Curiae is, that the evidence in the case shows affirmatively that Newsome was a mere licensee and in no sense contractor with the' Market House .Association and does not appear to have been its agent in the matter. It is true that this point is not made nor argued by counsel of record for the appellant, but at the trial there was a demurrer to the evidence as not sufficient to entitle plaintiff to recover. We cannot say what reasons were urged in support of the demurrer, for anything appearing to the contrary, this point may well have been urged in support of the demurrer, but by repeated objection to the admission of evidence, counsel for appellant did make the point that no ease was made ont to charge the Market Honse Association; that the lien paper was not admissible “for the reason that there has been no foundation laid; that it is being introduced at an improper time,” etc. Again, when the notice of the claim to a lien was offered, counsel for the Market House Association said: “I believe I can offer a general objection to the introduction of any evidence without specifically making my same old objection here and filling up the record and taking up time. I make the objection to any of the questions with reference to the work done there in accordance with the objection I have made to the lien paper that the court will understand it with the understanding that the same objection goes to each of these questions,” etc. The objection) being overruled, counsel for appellant, Market House Association, further said that he was “only making this objection as far as the owner of the property is concerned.” These and similar objections made throughout the introduction of testimony, as well as the demurrer, were sufficient to raise the point that the Market House Association was not bound by any contract between it and Newsome which rendered its property liable for a lien for the work done, or whether New-some, in making the contract for the excavation, was acting as agent for the Market House Association so as to bind it. On this state of the record, we think that question was left open for our consideration.

It is the well established law of this 'State that to maintain a lien against the owner by a subcontractor, it must appear that the work was done by the contractor under a contract with the owner of the property; that he had a valid, subsisting contract with the owner of the property for doing the work and furnishing the material. That is clearly settled by our Supreme Court in Ward v. Nolde, 259 Mo. 285, 168 S. W. 596. Our own court followed it in the ease of Carey Co. v. Kellerman Construction Co., 185 Mo. App. 346, 170 S. W. 449. We refer to these opinions and the cases therein cited as settling this point in favor of the contention of the appellant.

It follows, that on the face of the contract in evi-denc between Diesing and the Market House Association, on the one side, and Newsome on the other, New-some was a mere licensee and was under no obligation to enter upon and go on with the work, and consequently cannot bind the property of the owner for the work done and improvements which he made upon it.

We might close here as this is fatal to respondent’s case, but as counsel on either side have raised other points which are in the case and deserving of attention, we will very briefly refer to them, especially in view of the fact that counsel for respondent seem to ask us, if we reverse the case to remand it, in order that they can introduce proof to establish an agency and to show that the contract in evidence between Diesing and the Market House Association and Newsome was a mere subterfuge. If the plaintiff, repondent here, can make that showing, or can show by competent evidence that after this contract was made it was agreed that Newsome was in fact doing the work under contract with the Market House Association, which obligated him .to do it, we think that he is entitled to do it.

It is claimed that there are non-lienable items in that account, it being cliamed that the charges for superintendent and foreman are not lienable items.

It is true that at an early day, in Blakey v. Blakey, 27 Mo. 39, our Supreme Court said (l. c. 40):

“The law gives the mechanic, builder, artisan, workman, laborer, or other person, who may do or perform any work upon or furnish materials for any building, a lien on the same to secure the payment of the work done or materials furnished; but it has no such elastic power as is claimed for it in this case ,and it cannot be stretched to cover, besides the value of the work done and materials furnished, a claim for services performed by the builder for himself in superintending his own workmen.”

In O’Connor v. Current R. Co., 111 Mo. 185, 20 S. W. 16, our Supreme Court, at page 194, in an action to enforce a lien by contractors for tbe construction of a railroad under the law governing such liens, cited Bla-key v. Blakey, supra, with approval, hut on the point that non-lienable work was so mingled with that which was lienable as not to he separately distinguished. Our court in Nelson v. Withrow, 14 Mo. App. 270, l. c. 279,. cited Blakey v. Blakey, supra, approvingly, but in that ease as well as in the Nelson Case the claim for superintendence was by the contractor himself for his' own work in superintending.

In Sweem v. Atchison, T. & S. F. Ry. Co., 85 Mo. App. 87, also an action under the lien law relating to the construction of railroads, Judge EllisoN, speaking for the Kansas City Court of Appeals, reviewing Blakey v. Blakey, supra, and other cases, says (l. c. 94) that the court felt it was left free, under the builders lien statute and the railroad lien statute, to consider as an original proposition, whether the claimant, who was a mechanic or machinist, superintending the work, is entitled to a lien for his services. Holding the two statutes to be not entirely alike, that learned judge concludes that under the railroad lien law the claim of this mechanic was lienable and he intimates grave doubt as to the correctness of the Blakey decision on principle.

In the case at bar the evidence is that the superintending work was done by a person employed by the contractor. That distinguishes this case from those referred to. It is further to be borne in mind that when Blakey v. Blakey was decided, the rule in our State was, to construe the mechanc’s lien law strictly on the utenable ground that that krw was in derogation of common law. But all of our modern decisions have taken exactly the opposite view' and hold that it is to be construed liberally. See Joplin Sash and Door Works v. Shade, 137 Mo. App. 20, l. c. 23, 118 S. W. 1196; Powers & Boyd Cornice and Roofing Co. v. Muir, 146 Mo. App. 36, l. c. 49, 123 S. W. 490, and authorities cited in these two cases.

A very able review of the Missouri decisions, most of which we have cited above, as well as others, will be found in Continental & Commercial Trust & Savings Bank et al. v. North Platte Valley Irr. Co. et al., 219 Fed. 438, l. c. 442. Reviewing these decisions the learned judge, referring particularly to Blakey v. Blakey, supra, says: “An examination of that case, however, shows that all that was decided was that where a builder took a contract for the erection of a house, he could not maintain a lien for superintending his own workmen.” He also refers to Edgar v. Salisbury, 17 Mo. 271, as merely holding that where lienable and non-lienable charges were stated together in one charge, so that it was impossible to ascertain how much was lienable, the entire lien would be lost. (Such was the case in O’Connor v. Current River R. R. Co. supra.) Citing Murphy v. Murphy, 22 Mo. App. 18, as disposing of the point in the same way, and Nelson v. Withrow, supra, as following Blakey v. Blakey, supra, Judge Carland, who wrote the opinion in the Circuit court of the United States for this circuit in the case cited, says: “The old doctrine that these lien statutes, being in contravention of the common law, must be strictly construed, has given way to a more liberal doctrine, in modern times, for the purpose of carrying out the purposes of the statute.” His conclusion is that the charge for superintending, under circumstances such as here, was lienable. The finding in this case was on the second count, which proceeded ou contract. That fact, however, does not change the law, which only gives a lien for certain work, material and services. If under contract to do the work for a lump sum, non-lienable items are included, the fact of it being done under contract does not change the situation. Where the plaintiff endeavors to establish a lien against the realty he can charge the realty alone only for such work, labor or material as are lienable, and this is true whether the action is on quantum mermt or under contract.

Our conclusion is that the item for superintendence as well as that for the foremen are lienable items and that the spirit of the more recent decisions of onr State tends to support this view.

It is urged that the services and labor performed in excavation, no building or other improvement being placed upon the realty, are not lienable; that as no building was constructed, no improvements made, no lien can be maintained for excavation for the cellar and foundation. We do not accede to this.

In 27 Cyc., p. 36, par. 6. It is said:

“Excavations and foundations for a building are generally held to be within the lien laws, even though' the building is not completed.”

And in this same work, at p. 41, par. 16, it is said:

“The right to a lien for work done in the construction of a building is not dependent upon whether the building is actually completed but whether the construction is commenced. If this is done and lienable work is done in aid thereof the right of lien thereby becomes perfect, and cannot thereafter be defeated by any act of-the proprietor.”

While we have no authority in this state on that subject, the authorities cited in the compilation as above from other states fully sustain them. We hold that such work, being done in the excavation, of this foundation, is lienable, although the project was afterwards abandoned and no superstructure erected.

The result is that the judgment against the defend- and Newsome is affirmed, but the'judgment against the defendant Merchants & Consumers Market House Association is reversed and the cause remanded as to that defendant.

Allén and Becker, JJ., concur.