Opinion
No. 27789.
April 18, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, JOHN A. WITTHAUS, J.
Walter Lambert, St. Louis, for appellant and plaintiffs.
Kerth Schreiber, Clayton, for respondents William G. Gault and Lucille Gault.
Herbert W. Ziercher, Clayton, for respondent Walter F. Faerber.
This is an equitable mechanic's suit to have the court adjudicate and determine with respect to any and all mechanic's liens to be established and enforced against one acre of land and the improvements thereon belonging to William G. Gault and Lucille Gault, his wife. A part of the relief sought was that the mechanic's liens asserted by the respective claimants be declared prior and superior to two outstanding deeds of trust executed by William G. Gault and Lucille Gault to one William LaBagge as trustee and Walter F. Faerber as beneficiary.
The Gaults are the owners of a tract of land of approximately nine acres in the western part of St. Louis County. The improvements consisted of the erection of a dwelling house upon a portion of the tract, together with the construction of a rock roadway across the land for the distance of more than a quarter of a mile.
The action was brought by Henry Dickinson and Elizabeth Dickinson, husband and wife, who are partners in the grading business. Their lien account was for the sum of $932, which allegedly represented the reasonable value of equipment and labor which they had furnished in handling and moving dirt in connection with the making of the improvements.
The Gaults were of course named as defendants, as were also LaBagge and Faerber, trustee and beneficiary respectively in the two deeds of trust.
The cross-bills of all the several defendant lien claimants were voluntarily dismissed save that of defendant West Lake Quarry Material Company, Inc., which was based upon a lien account of $1,290.14 allegedly representing the reasonable value of certain crushed and building stone which had been furnished for and had gone into the improvements.
The Gaults answered by a general denial, as did also defendants LaBagge and Faerber except for the admission that they were named as trustee and beneficiary in the deeds of trust.
At the close of plaintiffs' case defendants William G. Gault, Lucille Gault, and Walter F. Faerber moved to dismiss plaintiffs' cause, which motion the court sustained upon the ground that plaintiffs had failed to prove their lien account.
The case proceeded upon the cross-bill of defendant West Lake Quarry Material Company, Inc., and at the close of all the evidence the court rendered judgment in favor of such defendant, and against defendant William G. Gault, alone, for the sum of $1,509.41, but denied a mechanic's lien. The judgment was in favor of all the other defendants.
Upon the entry of such judgment defendant William G. Gault filed his separate motion for a new trial, while plaintiffs and defendant West Lake Quarry Material Company, Inc., joined in a motion for a new trial.
All motions for a new trial were thereafter overruled, whereupon defendant West Lake Quarry Material Co., Inc., alone give notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
It is thus to be observed that defendant West Lake Quarry Material Company, Inc., is the only appellant in the case. Plaintiffs, though unavailingly moving for a new trial, did not appeal from the judgment of dismissal. Nevertheless counsel, who represented both plaintiffs and appellant at the trial below, argues at length in his brief in this court that plaintiffs, even though a lien were to be denied, should at least have had judgment for the amount of their lien account as evidenced by a promissory note for $932 which had been executed to plaintiffs by both William G. Gault and Lucille Gault after plaintiffs had supplied the labor and equipment upon which their lien account was based. It is enough to say that the dismissal of plaintiffs' cause in no way prejudiced the rights of appellant, West Lake Quarry Material Company, Inc., and since plaintiffs did not appeal, the question of whether the dismissal of their cause amounted to error against them is not here for our review. Schee v. Schee, 319 Mo. 542, 4 S.W.2d 760; Turner v. Hine, 297 Mo. 153, 248 S.W. 933; Botto v. James, Mo.Sup., 209 S.W.2d 256.
The burden of appellant's own complaint is that the court erred in denying it a lien for the amount of its account. It is a complete answer to say that appellant's account was only proved against William G. Gault alone, and not against his wife, Lucille Gault, although title to the property was shown to have been vested in both husband and wife. In this situation William G. Gault had no such interest as would have permitted him, by his own individual act, to have subjected the property to a mechanic's lien. Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144; Wilson v. Fower, 236 Mo.App. 532, 155 S.W.2d 502; R. D. Kurtz, Inc., v. Field, 223 Mo.App. 270, 14 S.W.2d 9.
It appears that after the completion of the improvements William G. Gault executed to appellant his own individual promissory note for the amount of appellant's account, with the note made to mature before the expiration of the time for asserting appellant's lien. Holding that the note was merely an admission of William G. Gault's indebtedness and that it had not been accepted in payment of the account, Allen Estate Ass'n v. Fred Boeke Son, 300 Mo. 575, 254 S.W. 858, the court, in rendering judgment, of course made no mention of the note. It is argued that when the evidence disclosed, not only the execution of the note to appellant by William G. Gault alone, but also the execution of the note to plaintiffs by both William G. Gault and Lucille Gault, the court should have treated the petition as amended to conform to the proof, and should have rendered judgment for the respective parties on both notes. Aside from any other consideration, appellant obviously has no reason to complain, since it none the less recovered a personal judgment against William G. Gault for the full amount of its account. Inasmuch as plaintiffs have not appealed, there is no question before us as to whether the court might have properly followed such a course with respect to plaintiffs' cause of action.
Since appellant was not entitled to a lien, there is no point in considering whether its proof sufficiently identified the one acre of ground as to which a lien might have extended, or whether a lien, if declared, would have had priority over the liens of the two deeds of trust.
The judgment rendered by the circuit court should be affirmed; and the Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.