St. Louis Fire Door & Sheet Metal Works v. Viviano

185 S.W. 218, 194 Mo. App. 440, 1916 Mo. App. LEXIS 227

• Court: Missouri Court of Appeals
• Decided: April 4, 1916
• Status: Published

Opinion

NORTONI, J.

This is a suit to enforce two mechanic’s liens. Plaintiff recovered and defendants prosecute the appeal.

The first lien asserted is for the amount of $577 and the second for the amount of $297. The first lien hot-toms on the installation of certain sliding fire doors in defendants’ building and angle sills thereunder; while the' second relates to the installation of certain jackknife doors and transoms. The defendants, Vivianos, are the owners of the building constructed as a macaroni factory, and defendant L. B. Wright Construction Company is the original contractor. It appears plaintiff, as a subcontractor, agreed with the L. B. Wright Construction Company, as-the original contractor, to install the doors and angle 'sills above referred to. Although the doors and angle sills were accepted and used by defendants, no compensation was made to plaintiff therefor.

In making its case, plaintiff introduced the original contract between the owners of the property and the construction company, which required the completion of the building by the original contractor on or before September 23, also that the fire doors, when installed, should be approved by the St. Louis Fire Prevention Bureau.

It is argued that no recovery should be allowed, for that it does not appear the terms of this contract were complied-with. It is'to be said, in this connection, that no delay is pointed out attending the conduct of plaintiff, but it does appear the original contractor did not complete the building, which was due on September 23, until probably about the first of December thereafter. Plaintiff installed the doors, as is usual, when the other work was about completed, and, according to all of the evidence, before the building was completed by the original contractor. ' .

It is earnestly argued that, as the contract between the owners and the construction company required the doors to be approved by the St. Louis Fire Prevention Bureau, plaintiff is not entitled to recover because there is no evidence that they were so approved, but obviously this is a misconception of the record. There is- an abundance of evidence to the effect that, after the doors were installed, the Fire Prevention Bureau inspected them and made certain requirements, all of which were complied with by plaintiff, and that no further complaint was made thereafter. Moreover, defendant introduced much evidence to the effect that the doors were entirely satisfactory in all respects. This evidence was given to combat plaintiff’s theory, that the time for filing a lien account was extended because of certain corrections made in January, after the doors were installed, in finally completing its contract. The evidence on the matter of the approval by the Fire Prevention Bureau is as follows: “Q. Was that work ever approved by the St. Louis Fire Prevention Bureau? A. They made an inspection and asked us to change a few small items, which we did.” FVom this it appears plaintiff complied with all the requirements of the Fire Prevention Bureau and obviously the jury were authorized to find from this and other facts and circumstances the approval referred to. At any rate, there seems to have been no controversy about this matter at the trial, and, as before said, defendants introduced direct evidence to the effect that the doors were proper in every respect from the first and performed their office splendidly, but this, as above said, was to combat the testimony introduced by plaintiff, to the effect that some corrections were made subsequently, at the request of the Vivianos, the owners of the property, so as to extend the time for filing the lien.

Touching the argument to the effect that plaintiff did not show the doors were installed within the time limited in the contract for the completion of the building —that is, September 23 — it is to be said that there is no possible merit in this. In the first place, whatever delay was occasioned in the construction of the building — and of this there appears to be no particular complaint, in the record — was entailed in some manner by the L. B. Wright Construction Company. There is some evidence that the building was completed in November, and there is some evidence that it was completed about December \ and some, after December 25, but all of the evidence is, that the matter of installing the doors was necessarily deferred until the other work was about completed. The doors were installed, according to defendants’ evidence, when they moved .into the building, but all of the evidence shows that this was subsequent to September 23. At any rate, it appears plaintiff installed the doors as soon as 'the building was made ready for it to do so by the contractor, and such’ doors are a permanent part of the building to be enjoyed constantly by defendants. In such circumstances, the matter of time is. not to be regarded as of the essence of the contract and plaintiff’s right to recover denied on that account. The proposition advanced is settled adversely to the argument put forward here, as will appear by reference to the St. Louis Steam Heating, etc. Co. v. Bissell, 41 Mo. App. 426, 431.

Another argument is to the effect that the contract required the jackknife doors to be installed according to the plans and specifications and that such plans and specifications are not in evidence. Because of this it is said plaintiff has. failed to show a compliance with the contract, but it is enough -to say of this that 'the matter was not referred to at the trial, and, indeed, defendants’ evidence all goes to the effect that the doors were perfect-—indeed, extremely satisfactory in every respect.

In the lien account there are some items with respect to the hours of labor employed in installing the doors, and the evidence is rather meager with respect to the hours of labor. It is argued both liens must fail because of this, but the point is without merit, for the contract, the lien papers, and, indeed, the entire record, disclose that the fire proof doors and the angle sills and also the jackknife doors were to be installed at set figures, which include labor as well as the material in the doors. The evidence is abundant that the doors were installed according to the contract and at the price agreed upon, also that the price was a reasonable one. All of the items in connection with the installation of the doors and angle sills, including the labor, were lienable. This court, on a similar question, has heretofore said:

“A charge is not a ‘lumping’ one where it includes only lienable items which are the subjects of an express contract for a given price which (in case of a subcontract) is also shown to be the reasonable value thereof.” [Holland v. Cunliff, 96 Mo. App. 67, 80, 69 S. W. 737.]

The owners of the building are copartners in the business of manufacturing macaroni, and they erected this building for use in such business. They are Vito Viviano, Pietro Viviano, Salvatore Viviano and Gaetano Viviano. The deeds in evidence show that they own the property jointly and a portion of the property was conveyed to them as Viviano Brothers. Notice of the filing of the lien was served on all of the owners personally, save Gaetano Viviano, and the service on him, if at all, was by delivering a notice for him to his brother and business partner, Vito Viviano, as his agent. It is conceded that Vito Viviano is the senior member of the' co-partnership, of which his brothers are all members, and the evidence is abundant that he was the active man in connection with the construction of the building. This defendant, the senior member of the partnership, says he visited the building daily while in the course of construction, and it sufficiently appears throughout that he was the most active member of the firm. The statute requires the notice to be served on the owner of the property or his agent, and, in view of this, it is argued that the service of the notice to Gaetano Viviano on his brother and copartner Vito Viviano, in such circumstances, is not sufficient as to defendant Gaetano Viviano; but in view of the facts above stated, we view the matter otherwise. At any rate, the lien should not fail because of this as to the several co-owners personally served. [See Kneisley Lumber Co. v. Stoddard Co., 113 Mo. App. 306, 314, 88 S. W. 774.] However, it sufficiently appears that Vito Viviano, the senior partner, was acting as agent throughout for all of his brothers and copartners as well as for himself. And in such circumstances notice to him as agent for a copartner is sufficient. [See Stove Co. v. Spear, 65 Mo. App. 87.]

The debatable question in the case relates to the matter contemplated in plaintiff’s fourth instruction. It appears that plaintiff undertook to install the slide fire doors for the general contractor at the agreed price of $525. Shortly thereafter it was ascertained that the doors would not be fire proof unless angle sills were placed thereunder. Thereupon the general contractor proposed that plaintiff should do this work as well, and another agreement was made touching the matter, whereby plaintiff undertook, for $52 to furnish and put in place the angle sills, in order, to render the entire construction in connection with the doors fire proof. The evidence is, that the angle sills were installed in September, but the doors' themselves were not finally installed until the twenty-third of December. The lien touching both was filed April 21 thereafter. The statute requires the lien of the subcontractor to be filed within four months after the completion of the work. A question was made in the case as to whether or not the lien touching the installation for the fire doors and angle sills was filed in time. Evidence was given on the part of plaintiff tending to prove that, though the doors were installed December 23, some .defects were pointed out by the fire insurance survey and- also by the Vivianos requiring certain alterations as late as January. On the other hand, there was evidence given on the part of defendant to the effect that the doors were completed as early as December 2 and everything was in excellent shape so as to require no additional labor thereafter. On these facts, it is insisted, that the lien filed April 21 was out of time as to the fire doors and the angle sills also, but especially as to the angle sills, which appear to have been installed prior to the installation of the doors. Touching this matter plaintiff requested and the court gave the following instruction:

“IV The jury are instructed that the several items of $525 and $52 for work and materials embraced in the lien account of $577 were not furnished under one contract, but under two different contracts, and if said lien account was filed within four months after the completion of the work under either or both of such contracts, then as to such of the contracts so completed within four months from the filing of said account, said lien account was filed within the time required by law.”

This instruction recognizes and treats with the matter of installing the fire doors at $525 as one contract and the matter of installing the angle sills at $52 as another contract. It is argned the instruction is erroneous in that it directs, substantially, that if the lien account was filed within four months after the completion of the work, under either or both of the contracts, then, as to the contract under which the work was completed within four months, the lien was filed in time. The instruction is rather involved and not as clear as it should be, but, when scrutinized, is well enough. The court has heretofore said:

“It is the law that where there are separate contracts between a building contractor and an owner for the performance of different jobs, in order for a lien account filed by the contractor, to be good for the entire work, it must be filed within the statutory period after the completion of the work under each contract.” [See Darlington Lumber Co. v. Harris, 107 Mo. App. 148, 153, 80 S. W. 688.]

This instruction first concedes that there were two separate contracts — one at $525 and one at $52 — for work and materials embraced in the account of $577. After so doing, it directs the jury that if the lien account was filed within four months after the completion of the work, under either one of these or both of these contracts, “then, as to such of the contracts so completed within four months,” the lien was filed in time. The instruction appears to be well enough. The judgment ought not to be reversed for this, when it appears from the letter of the Vivianos in evidence that they actually required plaintiff to make certain corrections about this particular work some time after December 23, so as to clearly extend the time — that is, by completing their task on fire proof doors and sills — for filing the lien, under all of the authorities with which we are familiar. Besides the case last above cited, see, also, Darlington Lumber Co. v. Smith Bldg. Co., 134 Mo. App. 316, 114 S. W. 77. In this connection, it is to be said that what plaintiff undertook to do in the first instance was to install fire doors and it turned out that, to render them fire proof, it was necessary that angle sills — that is, metal sills— should be installed thereunder. The subsequent agreement to install these sills for $52 was really but a modification of the original contract and it seems the whole matter should have been so treated, for it all converged in the undertaking to install fire proof doors. However, plaintiff’s instruction, above set out, treated the two matters as separate contracts, and the real question for consideration is: Should the judgment be reversed because of this, when it appears that the work which was done in January, by way of making corrections and relied upon to toll the lien, was not done upon the sills themselves? We believe this work, though done on the doors, should, nevertheless, be treated as attributable to the whole of the undertaking — that is, the installation of the fire proof doors, of which the angle sills were parcel. It is to be said in this connection that the instruction as framed by plaintiff was too favorable to defendant and ought not to have treated the matter as two separate contracts, for in • fact, the installing of the angle sills, while it occasioned an additional charge of $52, amounts to no more than a modification by which the original contract to install fire proof doors was executed. [Burns v. Braun, 35 Mo. App. 337.]

In this view, the judgment should be affirmed notwithstanding the criticism to the instruction. It is so ordered.

Reynolds, P. J., and Allen, J., concur.