North St. Louis Planing Mill Co. v. Essex

CAULFIELD, J.

(after stating the facts). — I. Appellant urges that the petition does not state facts sufficient to constitute a cause of action for several reasons.

(a) The first reason which he urges is that the plaintiff has failed to allege facts from which it may be concluded that it was one of the obligees designated in the bond as “all persons who may become entitled to liens under said contract dated October 4, 1905,” and therefore no privity is shown to exist between the plaintiff and defendants. Appellant’s- position is that, in order for plaintiff to have become “entitled” to a lien under-the contract, it must not only have shown, as it did, that it furnished material for the building at the instance of the original contractor, but must have shown that it gave notice to the owner, filed its lien account in time, etc. Appellant even insists that it must appear that in. due time the plaintiff had filed suit to enforce its lien..

*26 In making this contention, appellant fails to distinguish between those “entitled” to liens and those who have taken steps to “enforce” them. That distinction was recognized by us in Holland v. Cunliff, 96 Mo. App. 67, 75 , 69 S. W. 737 , where, through Judge Barclay, we «aid: “By the law of Missouri, a lien in favor of an artisan or other person who furnishes labor or materials to improve realty is imposed in certain circumstances on the interest in land subject to the lien from the time of the commencement of the building or improvement. [R. S. 1899, sec. 4209]. The lien is not, therefore ‘obtained through legal proceedings’ within the meaning of section €7f of the Bankrupt Law of 1898 (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]), although later legal proceedings are needful to secure the fruits of the lien already engrafted on the realty by the performance of the beneficial acts described(The italics are our own.) LaAV writers, when discussing the question of who are “entitled” to liens, g-enerally answer it by merely designating classes of persons according to the benefit they have bestoAved. Thus one text-writer informs us that “the earlier mechanics’ lien acts did not expressly name contractors among those entitled to liens.” [Boisot, Mechanics’ Liens, sec. 217.] And in another place, (section 220) he states that “a contractor for the labor of others in a mine, at a fixed rate for each man per day, is entitled to a lien for the labor furnished by him as an original contractor.” And he speaks of the giving of notice and the filing of the lien as steps in the enforcement of the lien rather as being necessary to “entitle” the claimant to it. It seems to us that the language in question is sufficient to include one who, like the plaintiff, had furnished material and might have enforced a mechanic’s lien therefor, without regard to whether he took the steps necessary to such enforcement or not. Indeed, to prevent the steps necessary to enforce the lien and save the OAVner the expepse and trouble incident thereto was evidently the very purpose of giving *27 those entitled to a lien the privilege of suing on the bond. It would avail the. lienor and benefit the owner little, if at all, to give the former the privilege of bringing a suit on the bond only after he had reduced his lien claim to judgment in a separate suit. To hold that the language of the bond contemplated that would be against reason.

(b) Appellant next aserts that the petition fails to state a cause of action because it shows that the principal- did not sign the bond. Our Supreme Court has held that a common law bond not signed by the principal is void as to the sureties where it shows on its face that it is not a complete instrument without such signature (Gay v. Murphy, 134 Mo. 98 , l. c. 108, 34 S. W. 1091 , 56 Am. St. Rep. 496 ), but the court seems by its reasoning clearly to recognize that the sureties would be bound where the bond shows their intention to bind themselves regardless of whether the principal signs or not; at least, we take it, such would be the case where the principal is already bound by the contract referred to. [1 Brandt, Suretyship and Guaranty, 2 sec. 170.] Here the petition discloses quite distinctly that the principal is bound by the contract referred to, and there is nothing in the description of the bond to indicate that it recites that it is signed by the principal .or that it calls for or contemplates such signature or appears incomplete without it. The language of the petition as to that is, that “said defendants, Henry A. Ohristophel and William H. Pearson (the building contractors), delivered to said Edward O. Roenigke (the owner and named obligee) a certain bond or writing obligatory signed and sealed on said day by defendants Louis Essex and Heinrich Schweitzer (the sureties) . . . by the.terms of which said contract and bond, said defendants Henry Ohristophel, William H. Pearson, Louis Essex, and Heinrich Schweitzer bound themselves,” etc. The latter part of this language beginning with “by the terms of which contract and bond” gave us some difficulty, for at first glance it would seem to imply that the *28 pleader intends to allege that by the terms of the bond the principals as well as the sureties purported to' bind themselves, which if true, would lead to the inevitable, .inference that the bond was incomplete on its face if the principals failed to sign. But, on carefully reading the-whole petition, Ave have concluded that, by alleging that, “by the terms of the contract and bond” the principals and sureties bound themselves, the pleader meant nothing more than that by reading the bond and contract together, as they should be read, the sureties by signing the bond and the principals by signing the contract referred to became bound. ■ While the petition would be subject to a motion to mate more definite and certain, and is not to be commended for use as a model of good pleading, we feel that it is sufficient in the respect mentioned.

(c) Appellant next contends that the petition is fatally defective because it does not show that the sureties authorized the principals to deliver the bond for them. It sufficiently appears from the petition that the principals had possession of the bond and delivered it to the obligee named, duly signed, and sealed by the sureties. The possession of the bond by the principal will be. presumed to be. rightful (Phillips v. Schall, 21 Mo. App. 38, 42 ); and, having rightful possession, his-delivery of it was binding upon the sureties, even without the assent of the latter, there being, so far as the petition discloses, nothing on the face of the bond, or in any of the attending circumstances, to indicate that there was any fact or circumstance which should preclude the acceptance of the bond. [State to Use v. Potter, 63 Mo. 212, 226 , 21 Am. Rep. 440 .]

Then, too, the petition alleges that by the terms of the contract and bond the sureties bound themselves, etc. This was sufficient in itself as an averment of execution and delivery by those alleged to have bound themselves by its terms. [State ex rel. Phillips v. Rush, 77 Mo. 586 ; Jacobs v. Curtiss, 67 Conn. 497 , 35 Atl. 501 ]

*29 (d) Appellant also urges that the petition fails to state a cause of action because there is no consideration alleged for the contract. The promises or undertakings of the owner, Eoenigke, contained in the building contract, were a sufficient consideration for the promises or undertakings of Christophel & Pearson, the contractors (Byrd v. Fox, 8 Mo. 574 ), and that same consideration was sufficient to bind the sureties for the contractors, the bond having been given contemporaneously with the delivery of the contract (Robertson v. Findley, 31 Mo. 384, 388 ); and such consideration was sufficient to sustain the promise of the sureties for the benefit of the plaintiff, although the latter was not privy to the consideration (Rogers v. Gosnell, 58 Mo. 589, 590 ).

II. The second ground of demurrer is that plaintiff has no legal capacity to sue. But appellant bases this ground on the assertion that plaintiff has shown no right to sue, not being a person “entitled to a lien,” and we have already disposed of that question in subdivision A of paragraph 1 of this opinion.

III. Appellant’s next ground of demurrer is that there is a defect of parties plaintiff, because “other joint obligees named iii the bond” are not made parties. The petition alleges that, by the terms of the bond, the obligors bound themselves “unto said Edward O. Eoenigke (the owner) and to all persons who may become entitled to liens under said contract dated October 4, 1905, in the penal sum of $6200.” There is nothing in the petition to indicate that any but plaintiff became “entitled to liens under said contract,” and no reason to assume that the obligees in said bond are other that Eoenigke, the owner, who is named, and plaintiff who answers to the description of one who became entitled to a lien. We will consider those two only as obligees.

Now joint obligees must sue jointly (Dewey v. Carey, 60 Mo. 224 ); but, though joined in one bond, they shall be considered as several and may sue separately, *30 if the bond be given to secure separate and distinct rights; and, if the petition fails to disclose that their rights are joint, the fault, if any exists, cannot be reached by demurrer. [State to Use v. Hesselmeyer, 34 Mo. 76, 78 ; Smith to Use v. White, 48 Mo. App. 404, 407 ; Cross v. Williams, 72 Mo. 577, 578 ].

. The petition before us makes no such disclosure. On the contrary, the fair inference is that the rights of the owner, Roenigke, and this plaintiff, are several. The transaction negatives the idea of their having any unity of interest. Unless some special circumstance, of which the petition does not advise us, exists, the owner will not. have any right to share in any recovery of damages had herein by this plaintiff and appears to have no concern whether plaintiff recovers or not. Plaintiff, is the only real party in interest. This ground of demurrer was not well taken.

IY. The fourth ground of demurrer is based upon the theory that the petition should have alleged that the bond was lost or destroyed; the bond or a copy thereof verified by the affidavit of the plaintiff not having been filed. We do not believe that section- 643, Revised Statutes 1899, now section 1844, Revised Statutes 1909, relied upon by appellant’s counsel, should be applied to a case like this, where it appears that, though having a right under the instrument sued on, the plaintiff is without the possession, control, or custody of it and has no legal right to such possession, control, or custody. Under such circumstances, the instrument cannot be filed or alleged to have been lost or destroyed. To insist upon such filing or allegation would be to deny plaintiff a remedy. The statute must have a reasonable construction and not be perverted so as to produce injustice. [Workman v. Campbell, 46 Mo. 305, 308 ; Widman v. Am. Central Ins. Co., 115 Mo. App. 342, 346 , 91 S. W. 1003 .] In State to Use v. Engelke, 6 Mo. App. 356 , this court refused to construe the statute as applicable where the- *31 original could neither be filed nor an averment be made that it was lost or destroyed. It is true that at that time the alternative of filing a verified copy was not permitted by the statute, bnt the language which required the original to be filed was exactly the same as the language which now requires the original, or a copy verified by the affidavit of the party, to be filed. [Wag. Stats. p. 1022, sec. 51; R. S. 1909, sec. 1844.] We see no reason why that which was held a proper excuse for not filing the original should not be held a proper excuse for not filing the verified copy; the same language being the subject of construction in each case. The alternative provision for the filing of a copy was evidently inserted as a mere indulgence to the party who would otherwise be required to file the original, for by the proviso to the section the court may, when good cause is shown, compel the production of the original before the opposite party shall be required to plead. There is no reason why such insertion should be regarded as having changed the conditions under which the filing is required or excused.

The judgment in this case was affirmed by this court at a former term, when the personnel of the court was different, but a motion for rehearing was sustained, and the case reargued and resubmitted before the court as it is now composed. As indicated by the foregoing opinion,, we are convinced that our first conclusion was correct. The judgment of the circuit court is therefore affirmed.

Reynolds, P. J., and Nortoni, J., concur.