State Ex Rel. Building Loan Assn. v. Reynolds , 288 Mo. 522 ( 1921 )

This is an original proceeding by writ of certiorari against respondents as Judges of the St. Louis Court of Appeals, wherein our constitutional authority is invoked to determine whether an opinion delivered by respondents is in conflict with certain decisions of this court.

The case of McCarthy Lumber Construction Company, Respondent, v. Lee F. Kinder, Eva Kinder, St. Francois County Building Loan Association (relator here) and Oscar L. Haile, appellants, came to the St. Louis Court of Appeals by appeal from the St. Francois County Circuit Court.

As appears from the opinion of respondents, Kinder and wife made a contract with McCarthy Lumber Construction Company for the erection of a house on a lot owned by them. The contract was evidenced by a letter. So much of it as is of importance here is as follows:

"Prof. L.F. Kinder, Farmington, Mo.

"Dear Sir:

"We propose to furnish all labor and all the material required for the erection completion of your 1 story bungalow dwelling in accordance with the plans and specifications that we have prepared for the same, for the sum of $2,480.

"It is understood that you wish to omit the brick fire place from this building, consequently we will deduct the sum of $104 for this omission, making net contract of $2,376."

Relator furnished the money for the erection of the house and took a deed of trust from the Kinders. The construction company erected the house in accordance with the contract, and the Kinders failed to pay the full contract price and for certain extras, leaving an unpaid balance of $960.19. Thereupon and in due time the construction company filed with the circuit clerk an account of its demand, in which the first two items are as follows:

"Oct. 15/15 To contract for erection of residence as agreed including the omission of fire place flue and foundation for same ..................... $2,376.00

"25 To enlarging basement as agreed ....................... 64.00"

The contract for enlarging the basement was made subsequent to the building contract, but was a complete and separate agreement. The other items of the account covered the extras, and the sufficiency of the statement as to them is not in dispute. There were about fifty items of such extras set out in said account.

Upon the trial of the suit filed to enforce such lien, defendants objected to the introduction of the lien account, for the reason it was not a true and correct account of the demand within the meaning of the Mechanic's Lien Statute (Sec. 7221, R.S. 1919), because the first two items do not state the nature of the work done or material furnished or items thereof. On appeal respondents held the lien account to be sufficient, and that the contractor did not need to set out these items with any greater particularity than they were stated in the contract. The opinion held:

"We think this account was such a statement of the claim as fairly apprised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such then it was sufficient."

In arriving at this conclusion respondents said:

"By reference to the terms of the contract it will be noted that the statement is as definite as the contract, and a lien statement which is as definite as the contract under which it is furnished is sufficient, and if a lumping price was agreed upon no other price could have been specified, so that the account would have been a just and true one. [Grace v. Nesbitt, 109 Mo. 9, 18 S.W. 1118.]

"Defendants contend, however, that even though the price could be a lump price, yet the items going to make up the whole for which the lump sum is charged, should be set out."

Relator contends such ruling is in conflict with certain designated controlling cases decided by this court, to-wit: Rude v. Mitchell, 97 Mo. 365, l.c. 372-3; State ex rel. O'Malley v. Reynolds, 266 Mo. 595, l.c. 598-9; Grace v. Nesbitt, 109 Mo. 9, l.c. 18-19; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, l.c. 54-5-6-8.

It was said by BLACK, J., in Rude v. Mitchell, supra: "Many things are often included in these building contracts for which the law gives no lien; and when it calls for a just and true account, it means a fairly itemized account showing what the materials are, and the work that was done, and the price charged, so that it can be seen from the face of the account that the law gives a lien therefor. A lumping item of the whole contract price on the one hand, and the credits on the other, is no compliance with the law at all. The account should be complete on its face, and a reference to the plans and specifications for the work done and materials furnished is a worthless reference and adds nothing to the statement. These liens are creatures of the statute, and the lienor must make and file an account which is a fair and substantial compliance with the law. If he fails to do this he has no lien for the materials and work not thus specified."

A reference to the facts stated shows the contract price was not agreed on and the suit was on quantum meruit. The sufficiency of a lien account covering in one item a charge for a complete structure at a price fixed by contract was not determined in the Rude case. What was said therein concerning a lumping item of the whole contract price not being a compliance with the law, was not necessary to the decision in that case.

In State ex rel. O'Malley, Admr., v. Reynolds, supra, was a proceeding by writ of certiorari in which the sufficiency of a lien account was involved. BLAIR, J., said: "The real objection relator makes to the lien account is that the account does not sufficiently set out the character of the materials furnished; and the sole question this objection presents, when the Court of Appeals' statement of facts in this connection is analyzed, is whether a description of materials furnished when made in abbreviations and trade terms is a compliance with the statutory requirement that a `just and true account of the demand' shall be filed. [Sec. 8217, R.S. 1909.] . . .

"That this sort of description of the materials is, in such circumstances, sufficient under the statute (Sec. 8217, R.S. 1909) we have no doubt, and so held in the Plitt case."

The question of the sufficiency of a statement setting forth in one item a lump sum for work done under contract was not involved. The opinion of respondents is not in conflict with anything said in the O'Malley case.

In Grace v. Nesbitt, supra, the lien account did not put a value upon each item of materials. The items themselves were set out and the price was a lump sum. The court said:

"The materials were bought in a lump for an entire price, and this appears from the account filed. In such case no detailed statement of the values of items could have been given more accurately than as an estimate which could have been made as well by the owner. What the owner wanted to know was the price paid, so he could not be charged more."

In Planing Mill Company v. Allison, supra, the sufficiency of a lien statement, which omitted the dates of the various items, was involved. BARCLAY, J., at page 58, said:

"There was an objection in the trial court to the lien paper on the ground that there is a so-called `lumping charge' in it. That objection is not well founded. It does not appear that any item included in that charge represents anything that may not properly be made the subject of a lien under our law. If the contract of the subcontractor was to supply for the building a certain group of articles, for a certain price, there is no valid objection to his reciting those articles and then stating that one price in his claim, as was done in the case at bar."

This case does not hold that it is necessary to set out separately all the items included at one contract price. It merely approves a lien account in that form. The contract embraced a group of articles for a building and not a complete building.

There is no language used by this court in any of the case designated with which the opinion of the Court of Appeals can be said to be in conflict, unless it is the Rude case.

Hilliker v. Francisco, 65 Mo. 598, is one of the cases upon which respondents base their opinion. In that case this statement was held sufficient: "To Junction City Stone furnished First National Bank, as per contract, $7,790." HENRY, J., at page 603, said: "The account filed with the clerk, under the circumstances, was specific enough. The only item about which there can be any doubt is the first, for stone furnished bank building as per contract, etc. There was evidence tending to show, not only that the bank was appraised of the terms of the contract between the contractors and plaintiffs, but had agreed with the contractors to the sum of $7,000, as compensation to plaintiffs for the labor and materials mentioned in the first item."

In discussing and distinguishing the Hilliker case, Judge BLACK, in his opinion in the Rude case, at page 373, said: "In Hilliker v. Francisco, 65 Mo. 599, the first item of the account was in these words: `To Junction City Stone furnished First National Bank as per contract, $7,790.' The suit was one by the sub-contractor, and there was evidence to show that the bank had agreed with the contractor to the sum of seven thousand dollars as compensation to the plaintiffs for the material and labor mentioned in the item. Under these circumstances it was held that the item was sufficiently specific. The item there in dispute, it will be seen, related to the stonework and labor of setting only, and the price is given. In the present case the first item is for $22,287, and there is nothing to show, on the face of the account, what is, or what is not, intended to be included. The Hilliker case furnishes no authority for upholding the account filed in this case, and that case goes to the verge of the law."

In spite of what Judge BLACK said as to the Hilliker case going to the verge of the law, that case has been repeatedly cited with approval in other cases, and it has been clearly distinguished from the Rude case. [Busso v. Fette, 55 Mo. App. 453; Kern v. Pfaff, 44 Mo. App. 29; Mahan v. Brinnell, 94 Mo. App. 165.]

In the Rude case the necessity of particularity is apparent, because no specific contract for the work had been made, and this distinguishes that case from the Hilliker case. The rule laid down appears to be sound.

Where the proof shows that a definite price has been agreed upon between the contractor and the owner for a completed structure there is no need to set out the items of the various materials furnished and the labor performed in complying with such contract, and a statement of the fact of such contract having been made at a definite price and performed is a sufficient account of the demand under the statute as to that item. We therefore hold that the opinion of respondents in this respect is not in conflict with the cases designated by relator.

Relator contends that the opinion of respondents holds that as between the original contractor and the owner the same definiteness as to the lien claim is not required as that on the part of sub-contractors and others, and in this holding the opinion conflicts with Rude v. Mitchell, 97 Mo. l.c. 374, and Mitchell Planing Mill Co. v. Allison, 138 Mo. l.c. 55. Relator apparently is mistaken. No such ruling appears in said opinion. Relator probably refers to the following language included in a quotation we have hereinabove made from the opinion:

"But this court held, in Mahan v. Brinnell, 94 Mo. App. 165, 67 S.W. 930, that when the lien is filed by the original contractor, who has specifically agreed with the owner to do the job for a certain price, a detailed statement of the items of material and labor that entered into the improvement is not required."

The language there used was in reference to what was decided in another case, and the language referred to makes no distinction as between original contractors and sub-contractors.

It therefore appears that our writ heretofore issued should be quashed and it is so ordered. All concur.