Summary
In Fuhler v. Gohman Levine Constr. Co., 346 Mo. 588, 142 S.W.2d 482 (1940), the lien claimant, a subcontractor, was permitted to recover not only reasonable compensation for his labor and materials but also a percentage for profit and overhead.
Summary of this case from Dave Kolb Grading, Inc. v. Lieberman Corp.Opinion
July 23, 1940.
1. MECHANICS' LIEN: Building Contract: Work and Labor. Where a contractor is prevented by the other party from fulfilling a building contract he may recover reasonable compensation for his work and labor regardless of the contract price.
Where a contractor made no breach of his contract but performed the work demanded of him, different from and beyond that contemplated in an old contract which was abandoned, but under a new implied contract, his lien claim was not subject to the charge that it was not a true and just account required by the statute because in excess of the contract price of the abandoned contract.
2. MECHANICS' LIEN: Building Contract. In an action for a mechanics' lien on a building contract, the fact that the contractor added ten per cent for overhead and ten per cent for profit would not defeat his claim for he was entitled, in his action in quantum meruit, to the benefit of his bargain.
He was only required to show the reasonable value, as in any other action in quantum meruit.
3. MECHANICS' LIEN: Building Contract. Where a contractor is prevented by the owner's fault from completing a building contract he may recover the reasonable value of his labor and material, regardless of the contract price, but if he abandoned the contract he may recover only the actual value of the work and material, not exceeding the contract price, less such damages as resulted to the other party from breach of the contract.
4. MECHANICS' LIEN: Liberal Construction. The mechanics' lien statutes should be liberally construed.
A subcontractor may make lienable charges for services in superintending the work.
In an action on a mechanics' lien where the plaintiff stated the date of the last work performed, and the referee who heard the witnesses found that the work was performed on that date or a few days later, the lien was timely filed as against the objection that it was not.
5. MECHANICS' LIEN: Waiver. Where there were some specifications introduced in an action to enforce a mechanics' lien as to a provision that the subcontractor would not be entitled to a lien, but the referee concluded from all the evidence that such specifications were not the ones referred to either in plaintiff's subcontract or in the contract between the owner and the contractor, and plaintiff was not bound by them, the lien was not waived.
6. MECHANICS' LIEN. In an action by a subcontractor to enforce a mechanics' lien a defendant subcontractor could not be defeated in his cross-bill on the ground that the referee found in his favor against an individual original contractor where the lien was against a corporation, where there was no such corporation, but the individual conducted business under that name; the finding by the referee in favor of the subcontractor and against the individual was correct under the facts.
If the subcontractor's right to a lien is not to be defeated because of that inconsistency between the pleading and the proof, his cross-bill may be treated as amended to conform to the proof.
7. MECHANICS' LIEN: Unnecessary Delay. Mere delay in enforcing a mechanics' lien will not forfeit a claimant's rights; it is unnecessary delay that is prohibited by the statutes.
In an action by an original contractor to enforce a mechanics' lien where the subcontractor and the owner were parties defendant, a motion to dismiss for unnecessary delay should not be sustained unless supported by evidence.
Where the record shows procrastination by all parties and the referee who heard the witnesses found there was no proof of unnecessary delay on the part of the plaintiffs, the motion was properly overruled.
While the duty to prosecute a suit with diligence rests upon the party who institutes it yet where defendant made no move to hasten the movement of the case as it might have done under the law, and the referee found there was no evidence to support the defendant's motion to dismiss, the trial court correctly sustained the referee.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
AFFIRMED.
Lendon A. Knight, David Levinson, S. Mayner Wallace and B.L. Liberman for Royal Neighbors of America.
(1) Inexcusable delay, in the prosecution of the lien claims, operated, by virtue of the statute, as an extinguishment of the claims. R.S. 1929, sec. 3172; Julius Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 981; Holt v. Miller, 6 P.2d 937, 79 A.L.R. 847; Hayward Lbr. Inv. Co. v. Greenwalt, 12 P.2d 445; Gluck v. Ruiz-Urrutia, 129 A. 130; Patterson Glass Co. v. Goldstein, 129 A. 422; Toher v. Lochinvar Realty Co., 108 N.Y.S. 667; Svela v. Bloch, 294 Ill. App. 522; Conrad v. Certified Ice Fuel Co., 276 N.W. 287. (2) Claimant George J. Fuhler is not entitled to a lien. (a) Fuhler's lien claim is not a "just and true" account under the mechanic lien statutes because it disregards the written contract and is for an amount largely in excess of the contract price. By suing in quantum meruit Fuhler cannot avoid his contract and in no event can he recover more than the contract price less the admitted payments. R.S. 1929, sec. 3161; Natl. Press Brick Co. v. Lester Const. Co., 177 Mo. App. 573; Grace v. Nesbitt, 109 Mo. 9; Harry Cooper Supply Co. v. Rolla Natl. Bldg. Co., 66 S.W.2d 595; Schroeter Bros. Hardware Co. v. Croatian Sokol Gymnastic Assn., 58 S.W.2d 995; State ex rel. St. Francois County B. L. Assn. v. Reynolds, 288 Mo. 522; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50; Bradley Heating Co. v. Sayman Realty Inv. Co., 201 S.W. 864; Kansas City Structural Steel Co. v. Athletic Bldg. Assn., 297 Mo. 615; Johnston v. Pump Co., 274 Mo. 414; Williams v. Chicago, S.F. C. Ry. Co., 112 Mo. 463; Mansur v. Botts, 80 Mo. 651; Aldridge v. Shelton Estate, 86 S.W.2d 395; Hoyt v. Buder, 318 Mo. 1155. (b) The filing by Fuhler of a lien claim which was not just and true within the meaning of the statute invalidated his entire lien claim. Reese v. Hoyer, 95 S.W.2d 884. (c) Fuhler's lien claim was not filed in time. R.S. 1929, sec. 3161; General Co. v. Elevator Co., 165 Mo. 171. (d) Fuhler by his contract waived any right to a lien by virtue of a provision of the specifications and by his agreement to take second mortgage bonds in partial payment. 40 C.J., sec. 164, p. 147; Selma Sash v. Stoddard, 22 So. 555; Henley v. Wadsworth, 38 Cal. 356; Szemko v. Weiner, 163 N.Y.S. 382; Early v. Atchison, T. S.F. Ry. Co., 167 Mo. App. 252; Pressed Brick Co. v. Barr, 76 Mo. App. 380; Isenman v. Fugate, 36 Mo. App. 166; 40 C.J., sec. 415, p. 314; Baumhoff v. St. L. Kirkwood Ry. Co., 171 Mo. 120; Dierks Sons Lbr. Co. v. Pearman, 172 Mo. App. 107.
William J. Becker for Martin A. Federer.
(1) Neither this respondent nor any other, in this case is guilty of inexcusable delay. R.S. 1929, sec. 3172; Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 981. (2) The Federer claim and lien does contain a just and true account as required by the statute and the law. R.S. 1929, sec. 3161; Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Aldridge v. Shelton Estate, 86 S.W.2d 395. (a) Respondent Federer's lien having been filed within four months after the completion of his work was filed in time. R.S. 1929, sec. 3161; Hanenkamp v. Hagedorn, 110 S.W.2d 826; Lee Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451, 341 Mo. 95; Miners Lbr. Co. v. Miller, 117 S.W.2d 711; Harry Cooper Supply Co. v. Gillioz, 107 S.W.2d 798; Moller-Vandenboom Lbr. Co. v. Boudreau, 85 S.W.2d 141, 231 Mo. App. 1127. (b) Under the terms of the respondent Federer's contract he did not waive his right to a mechanic's lien, as is shown by the record, and the appellant is in no position to make a claim of waiver for the reason that said defense is an affirmative one which was not pleaded. R.S. 1929, sec. 776; Neville v. D'Oench, 34 S.W.2d 507. (3) No answer or pleading to the cross-bill of this respondent, Martin A. Federer, having been filed, his claim stands as admitted or confessed. R.S. 1929, sec. 776; Stein v. Rainey, 286 S.W. 57.
Claud D. Hall for Harry Waldron.
(1) There was no delay in the prosecution of the lien proceedings requiring a dismissal of the same. Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 979; Hydraulic Press Brick Co. v. Lane, 198 Mo. App. 438; Secs. 3180-3186, R.S. 1929. (2) Claimant George J. Fuhler is entitled to his lien for the brickwork and materials furnished to the improvement. (a) Claimant Fuhler properly recovered on quantum meruit for the reasonable value of work and material. Johnston v. Star Bucker Pump Co., 202 S.W. 1152; Ehrlich v. Life Ins. Co., 88 Mo. 249; McCullough v. Baker, 47 Mo. 401. (b) Even though there was a contract and it was modified by mutual consent and such claim of quantum meruit may include all extras furnished without any reference to the contract and modifications. Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465; Gregg v. Gunn, 38 Mo. App. 283; Kick v. Doerste, 45 Mo. App. 134. (c) The contract price is only prima facie evidence of the reasonable value of the work and material. Natl. Press Brick Co. v. Lester Const. Co., 167 S.W. 1027; Martin-Welch H. P. Co. v. Spencer, 214 S.W. 417; Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 489; Yeats v. Ballentine, 56 Mo. 530; Mansur v. Botts, 80 Mo. 655; Barnett v. Sweringen, 77 Mo. App. 61; Daniels v. McDaniels, 184 Mo. App. 355; Macke v. Harris, 27 S.W.2d 1080. (d) Mr. Fuhler's lien claim could properly include a profit on the work and material as long as it constituted a part of or was of the reasonable value thereof. Borden v. Mercer, 163 Mass. 7, 39 N.E. 413, cited with approval in Bradley Heating Co. v. Sayman Realty Inv. Co., 201 S.W. 864; Elder Merc. Co. v. Ottawa Inv. Co., 165 P. 279, 100 Kan. 597; Marshall v. Cohen, 32 N.Y.S. 283, 11 Misc. 397; Leach v. Bopp, 12 S.W.2d 514. (e) Defendant only filed a general denial, did not plead a special contract or any affirmative defense and not entitled to any affirmative defense. Colburn v. Krenning, 220 S.W. 934; Brown Cons. Co. v. McArthur Bros. Co., 236 Mo. 41. (f) The exceptions of Royal Neighbors of America to the report of the referee, as far as the Waldron claim is concerned, were too general and did not specifically point out the ruling complained of or wherein it was not warranted by the law or the evidence, and was therefore insufficient. For said reasons alone said exceptions were promptly overruled. Dallas v. Brown, 60 Mo. App. 493; Cahill v. McCornish, 74 Mo. App. 609; State ex rel. v. Boeppler, 63 Mo. App. 151. (3) The Fuhler lien was filed within the statutory time. Sec. 3161, R.S. 1929. Claimant Fuhler did not waive the right to his lien. (a) Defendant only filed a general denial and did not set up any contract, breach of contract or other defense. Brown Const. Co. v. McArthur Bros., 236 Mo. 41; Hunt v. M., K. T. Co., 152 Mo. App. 182. (b) If defendant had specially pleaded such defenses it must have averred and proved performance of the contract on the part of the owner. Major v. Hast, 263 S.W. 468; Johnson v. Brill, 295 S.W. 563; Asadorin v. Sayman, 233 S.W. 475. (4) Claimant Waldron was properly held to be entitled to his lien. (a) A mechanic's lien is a proceeding in equity for every purpose. Rust Sash Door Co. v. Bryant, 124 S.W.2d 544. (b) Where the parties are in court a court of equity will protect the subcontractor's claims on equitable principles. Rockwell on Mechanic's Liens, sec. 66, p. 167; Brus Electric Co. v. Warwick E. Light Mfg. Co., 6 Ohio Dec. 475; Owen v. Murry, 6 Ohio Dec. 223. (c) Where the right to a lien is fixed by giving notice, so much of the amount due or becoming due to the contractor as will equal the claim of the subcontractor becomes transferred to him and he would have equitable claim on the fund even though he might not enforce it on the building. Rockwell on Mechanic's Liens, sec. 66, p. 166; Bates v. Santa Barbara County, 90 Cal. 543; Weldon v. Superior Court of Los Angeles, 138 Cal. 427, 71 P. 502. (d) Defendant Royal Neighbors having filed a mere general denial, it cannot take advantage of defect of party as same is waived. Johnson-Frazier Lbr. Co. v. Schuler Muench, 49 Mo. App. 97; Butler v. Lawson, 72 Mo. 227; Horstkotte v. Meiner, 50 Mo. 158; Fruin v. Furniture Co., 20 Mo. App. 313; Miss. Planing Mill v. Presbyterian Church, 54 Mo. 520; Lee Boutell Co. v. Brockett Cement Co., 106 S.W.2d 160. (5) The mechanic's lien statute should be liberally construed in order to preserve the benefit to be conferred. Waters v. Gallemore, 41 S.W.2d 870; Leach v. Bopp, 223 Mo. App. 254, 12 S.W.2d 512; Carroll Const. Co. v. Newsome, 201 Mo. App. 117, 210 S.W. 114; Lee Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451. (6) The report of the referee, which was confirmed by the lower court, stands as a special verdict. Fine Art Picture v. Karvin, 29 S.W.2d 170; Roberts v. Hendrickson, 75 Mo. App. 484; Fleeney v. Chapman, 89 Mo. App. 371; Martin v. Martin, 218 Mo. App. 617.
Walter Lambert, James H. Zipf and H.A. and C.R. Hamilton for other respondents.
(1) There are no grounds for the dismissal of this cause for any of the reasons alleged by appellant. (a) A party may not object to delay in the prosecution of an action, which he requested or to which he consented, nor may his successor in title so do. Lovitt v. Russell, 138 Mo. 474. (b) A party filing a motion to dismiss a mechanics' lien action for failure to prosecute with diligence must establish that the delay in prosecution was unnecessary. Seidel Lbr. Co. v. Hydraulic Press Brick Co., 288 S.W. 979. (c) In an equitable mechanics' lien suit a party desiring to speed the cause must have recourse to Section 3184, Revised Statutes 1929. Hydraulic Press Brick Co. v. Lane, 200 S.W. 306. (d) After the referee has reported his findings and recommendation to the court, a motion to dismiss for delay in prosecution should be denied, and the public policy declared in the Statute of Jeofails should be applied. R.S. 1929, sec. 1099; Weil v. Simmons, 66 Mo. 617. (2) Where, in an action in quantum meruit for work and labor, defendant desires to rely upon restrictive provisions of a contract, which he claims was made governing such work and labor, it is necessary to both plead and prove such contract as an affirmative defense. 71 C.J., pp. 123, 127, secs. 99, 105; Colburn v. Krenning, 220 S.W. 934; Brown Constr. Co. v. Mac Arthur Bros., 236 Mo. 41; Register Printing Co. v. Willis, 57 Minn. 93, 58 N.W. 825; Shaw v. Pope, 67 A. 495; Pittman v. Le Master, 128 S.C. 98, 121 S.E. 677. (3) Where a contract is made to erect a building according to designated plans and specifications and after the work is commenced the owner materially changes the plans and specifications and the contractor erects a substantially different structure, the original contract is thereby abandoned. Columbus Safe Deposit Co. v. Burke, 88 F. 630; Hutchinson v. Cullum, 23 Ala. 622; Rhodes v. Clute, 17 Utah, 137, 53 P. 990; Cook v. Harms, 108 Ill. 151. (4) Where a party furnishes work under a contract and also does extra and additional work, he may sue in quantum meruit for the contract work and extras without any reference to the contract and modifications. Gregg v. Dunn, 38 Mo. App. 283; Kick v. Doerste, 45 Mo. App. 134; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465. (5) Where work is done or materials furnished for a lumping price the lien account is not unjust and untrue because the items composing the lot are itemized. (6) In an action in quantum meruit the plaintiff's recovery is not restricted to the price he paid for the labor and material. Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143; Leach v. Bopp, 12 S.W.2d 512; Borden v. Mercer, 163 Mass. 9, 39 N.E. 414; Elder Mer. Co. v. Ottawa Inv. Co., 100 Kan. 597, 165 P. 279; Marshall v. Cohen, 32 N.Y.S. 283, 11 Misc. 397. (7) In the investigation of fact contemporary writing is highly esteemed in arriving at the truth. Miller v. Cotton, 5 Ga. 341; Whitaker v. Parker, 42 Iowa 587; Kent v. Manchester, 29 Barb. 595; Hart v. Ten Eych, 2 Johns. Ch. 62. (8) Where evidence is conflicting the appellate court defers to the findings of fact by the trial court. 2 Moore on Fact, p. 1419, sec. 1276; Sharpe v. McPike, 62 Mo. 300; Dailey v. Dailey, 125 Mo. 96; Greditzer v. Continental Ins. Co., 91 Mo. App. 534; Suhre v. Busch, 123 S.W.2d 8; United States v. Lee Huen, 118 F. 442.
This is an equitable mechanics' lien action brought under the statute (Sec. 3180, R.S. 1929, Ann. Stat., p. 5008) for the adjudication in one suit of the rights of all claimants against the premises at Gravois and Ellenwood Avenues in the City of St. Louis known as the Granada Theatre and Apartment Building. Suit was filed by George J. Fuhler, a subcontractor, for material furnished and for work and labor done on the building. Defendant, Gohman Levine Construction Company, was also a subcontractor. Other parties included Harry Waldron, doing business as Waldron Wrecking Company and Martin A. Federer, both subcontractors, who are also lien claimants and who are respondents here.
While the suit was pending the property was foreclosed and at the foreclosure sale on or about July 8, 1930, it was purchased by the Royal Neighbors of America, a corporation. Thereafter, on November 6, 1931, the Royal Neighbors on its application was made a party defendant. A referee was appointed on November 2, 1932, to try all the issues and commenced hearing evidence on January 11, 1933. He filed his report on December 1, 1936, recommending judgments for the lien claimants, and on December 20, 1937, the court confirmed the report of the referee and entered judgment for $26,066.22 in favor of the plaintiff Fuhler; for $9,846.60 in favor of defendant Federer; for $1,570.80 in favor of defendant Waldron; such judgments to be secured by liens against the premises. Royal Neighbors, the owner of the premises, has appealed.
The general contract for the building was between the then owner and R. Levine Company. The Gohman Levine Construction Company had the original contract for the masonry, cement and concrete work. The project seems to have been to a certain extent a family affair as R. Levine was the president of the company which owned the property. He was also president of R. Levine Company, the general contractor. He was also president of the Gohman Levine Construction Company. Gohman was vice-president of the latter company and in active charge of the building construction. Plaintiff Fuhler was a subcontractor under the Gohman Levine Construction Company for certain of the masonry and concrete work. The contract, in the sum of $91,292, incorporated by reference certain plans and specifications for the work "prepared by E.P. Rupert of Chicago, Ill., architect, and signed by him." These plans and specifications were presented to the Building Commissioner of St. Louis at the time a building permit was applied for, but the permit was issued on the condition that they be revised. Immediately, the construction company was authorized to contract for extra work with subcontractors. In a few months the building permit was revoked. In order to obtain a new one a number of changes were made in the work completed at that time and in the plans for the future work. There was testimony that the plans and specifications called for in the contract were not used and that the work proceeded on the orders of Gohman. Gohman's authority is not questioned. These plans are not set out in the record before us. The plaintiff has treated the contract as abandoned and the referee has found this to be a fact from the evidence. The plaintiff fully completed his work and made demand for the balance due him which was refused.
This is not a case where the contractor has failed to complete his contract or has breached it and refused to fulfill it. The plaintiff has sued in quantum meruit for the reasonable value of his work and labor. Under the circumstances we do not know how else he might have brought his action. The law is well established that where a contractor is prevented by the other party from fulfilling a building contract he may recover reasonable compensation for his work and labor regardless of the contract price. [Kelly v. Rowane, 33 Mo. App. 440; Dempsey v. Lawson, 76 Mo. App. 522; McCullough v. Baker, 47 Mo. 401; Ehrlich v. The Aetna Life Insurance Co., 88 Mo. 249.]
This rule is applicable in this case. Here the contractor made no breach of his contract. He performed work demanded of him, different and beyond that contemplated in the old contract which was abandoned, under a new implied contract. The fact that the plaintiff may have set up as a book-keeping item the amount specified in the original contract and then added the extras does not alter the true situation.
It follows that the plaintiff's lien claim cannot be subject to the charge that it is not a "just and true" account required by the statute because it is in excess of the contract price of the abandoned contract. It was not only proper but it was necessary to itemize the account. [Schroeter Bros. Hdw. Co. v. Croatian "Sokol" Gymnastic Assn., 332 Mo. 440, 58 S.W.2d 995.] Similar charges against the lien filed by Federer may be disregarded for the same reasons.
Another charge against the account is based on the fact that in setting out the reasonable values of the items ten per cent for overhead and another ten per cent for profit were included over the actual cost. There was ample testimony, undisputed, that the various charges as claimed were proper and reasonable. The case relied on by appellant, Bradley Heating Co. v. Thomas M. Sayman, etc. (Mo.), 201 S.W. 864, is not pertinent. In that case, Judge GRAVES purged from the judgment an allowance for the builders' profit. The evidence did not show that the profit was reasonable. However in a later case, Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143, Judge GRAVES said he had not decided in the Bradley Heating Co. case, the question of the true rule on the measure of recovery where the owner had breached the contract. In the Johnston case it was shown that the prices charged were reasonable but in excess of the actual cost to the contractor. On this subject Judge GRAVES said: "In the instant case the plaintiff by plain proof showed the reasonable value of the materials and labor furnished. That this value so shown was greater than plaintiff paid his subcontractors does not change the situation. Plaintiff was entitled, in this action in quantum meruit, to the benefits of his bargain. He is only required to show the reasonable value, as such is shown in any other action in quantum meruit. He is not precluded by what he pays for material and labor. . . . Proof of what he paid is of course admissible on the question of reasonable value, but is not conclusive thereof." While neither the opinion in the above case nor that in the Bradley Heating Co. case received a carrying vote except in the result we hereby approve and adopt what has just been quoted. Kansas City Structural Steel Co. v. Athletic Building Assn., 297 Mo. 615, 249 S.W. 922, is not in point because there an item of profit was claimed in addition to the reasonable value of the amount charged. In holding that such item could not be recovered in a quantum meruit action the decision relied on the Bradley Heating Co. case.
Where the contractor has been free from fault he should not be penalized so long as he can prove that a charge including a profit is reasonable. This must have been considered when the rule of the measure of damages was stated in Kelly v. Rowane, 33 Mo. App. 440, supra, relied on by Judge GRAVES. There it was held that when the contractor is prevented by the owner's fault from completing a building contract he may recover the reasonable value of his labor and material, regardless of the contract price, but if he abandons the contract he may recover only the actual value of the work and materials, not exceeding the contract price, less such damages as have resulted to the other party from the breach of the contract.
In Borden v. Mercer, 163 Mass. l.c. 9, 39 N.E. 413, also cited by Judge GRAVES, it was held that the reasonable value of labor may be more than its actual cost to the contractor and may be recovered. [See also Elder Mercantile Co. v. Ottowa Inv. Co., 100 Kan. 597, 165 P. 279.]
It is now settled that mechanics' lien statutes should be liberally construed. A subcontractor may make lienable charges for services in superintending the work. [Leach v. Bopp (Mo. App.), 12 S.W.2d 512; Fagan v. Brock Motor Car Co. (Mo. App.), 282 S.W. 135.]
In his lien account the plaintiff stated the last work performed by him was October 1, 1927, the date the theatre was opened, although there was testimony of his work being done up to October 6. If he continued to work as late as October 1, his lien is timely filed. This issue of fact is vigorously controverted. In addition to testimony of work being done in raising the fire wall and installing a brick partition wall after that date the plaintiff introduced an invoice showing a delivery of materials to the job as late as September 27. Witnesses for the appellant testified they last saw the plaintiff or his men working on the job in August, July, May, June and September. The referee saw the witnesses and heard their testimony. He found that the last work was done on October 1, or a few days later and that the lien was timely filed. The referee also found from the evidence that the lien of Federer was timely filed.
It is next argued that the plaintiff by his contract expressly waived any right to a lien. There were some specifications introduced in the case which contain a provision that a subcontractor would not be entitled to any lien. The referee concluded from all the evidence that these specifications were not the ones referred to either in the plaintiff's contract or in the contract between the owner and the contractor and that the plaintiff was not bound by them.
In his contract with Gohman Levine Construction Co. the plaintiff agreed to take in part payment for his work $5,000 of second mortgage bonds on the premises. The appellant claims that to the extent of the amount of the bonds this agreement constitutes a waiver of a lien. Appellant cites Baumhoff v. St. Louis K. Ry. Co., 171 Mo. 120, 71 S.W. 156, which holds that upon the performance of such an agreement no lien would have attached but where payment according to the contract was not made, then there was no waiver of the lien. This case in no way aids the appellant because in the case at bar the other party to the contract has failed to perform its part.
Respondent Waldron was a subcontractor under the plaintiff and furnished brick. It is not denied that the brick went into the building. The only objection to the finding in his favor is because it is against Fuhler personally, whereas the lien was against the Fuhler Bricklaying Company, a corporation, and his cross complaint was also against the corporation. There is no Fuhler corporation in this case. Fuhler admitted buying the brick from Waldron and putting it in the building. He further testified: "I am the Fuhler Bricklaying Co." Waldron testified without objection that he furnished to Fuhler, the plaintiff the brick for the building. The evidence also shows that payments were made by R. Levine Co. to Fuhler by checks payable to the Fuhler Company which were accepted and cashed. The only party to raise this question is the appellant. In the trial before the referee, the appellant, as shown by its exceptions, took the position that the Fuhler Company furnished the work and labor but was overruled. The referee found in favor of Waldron and against Fuhler personally. Under the facts that finding is correct. We upheld lien accounts in Lee Boutell Co. v. C.A. Brockett Cement Co., 341 Mo. 95, 106 S.W.2d 451, in a situation involving the same facts.
Waldron's right to a lien is not to be defeated because of this inconsistency between the pleadings and the proof. [St. Louis Concrete Products Mfg. Co. v. Walker (Mo. App.), 64 S.W.2d 131.] The cross-bill may be treated as amended to conform with the proof. [Arthur Maier Plumbing Co. v. Dieckmann (Mo. App.), 74 S.W.2d 495.]
The final decree and judgment was entered almost ten years from the date the suit was instituted. The very statement of this fact shocks the principles of justice. Yet, efficiency in the administration of justice requires the cooperation of all the parties and their counsel. The General Assembly has recognized the need of expedition in these cases. Usually persons both closely and remotely connected with the transaction are affected. Title to real estate is beclouded. Therefore it is provided that such action shall be "prosecuted without unnecessary delay." [Sec. 3172, R.S. 1929, Ann. Stat., p. 5001.] The question arises on appellant's motion to dismiss whether the claimants have lost their rights because of delay in prosecuting this action. Mere delay in itself would not serve to forfeit the claimants' rights. The Legislature has recognized that some delay might be inevitable. It is only unnecessary delay that was prohibited.
Before a motion to dismiss because of unnecessary delay may be sustained, such must be supported by evidence. [Seidel Lumber Co. v. Hydraulic Press Brick Co. (Mo. App.), 288 S.W. 979.] There was some delay in obtaining service on the parties because of foreign residence. Alias and pluries summons were issued. Then the attorney for the defendants (who is no longer in the case) requested that the case be not pushed. Plaintiff's attorney testified that he tried persistently to get the defendants to answer until finally he was forced to take a default judgment against them. Then foreclosure proceedings were had and the property was sold to the appellant. Appellant waited for more than a year to file its application to be made a party defendant. Shortly thereafter a referee was appointed and some three years later he filed his report. The record shows procrastination by all parties but the referee found there was no proof of unnecessary delay on the part of respondents. While the duty to prosecute a suit with diligence rests upon the party who institutes it, yet the appellant as defendant made no move to hasten the movement of the case as it may have done under the law or under the specific provision of the statute. Section 3184, R.S. 1929, Ann. Stat., p. 5013, declares that the court may speed the action on its own motion or at the instance of either party. This section should be read together with the other section. The referee found there was no evidence to support the appellant's motion. The trial court has sustained the referee. Under the circumstances of the case we must presume the trial court has ruled correctly.
The liens are not subject to the attacks which the appellant makes on them. The equities are on the side of the claimants. The evidence was sufficient to support the liens and the findings below. The amounts charged were found to be reasonable. The appellant has failed to show any reversible error. The judgment is for the right parties and is just. The judgment is affirmed. All concur.