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eBook details

• Title: Mitchell Engineering Company v. Summit
• Author : Missouri Court of Appeals Western District
• Release Date : January 21, 1982
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 77 KB

Description

Mitchell Engineering Company (plaintiff and hereinafter Mitchell) instituted this action in two counts. Count I sought enforcement of a mechanic's lien against land owned by Summit Realty Company (defendant and hereinafter Summit). Count II sought recovery of the balance due upon a construction contract from Trans-Missouri Builders (defendant and hereinafter Trans-Missouri). Two other parties were named as having an interest in the land. These parties were Larry W. Fink as trustee, and Commerce Mortgage Company as cestui que trust, under a deed of trust upon Summit's land. Fink and Commerce filed a joint answer in which they declared, these defendants deny, as of the date of this answer, they have any interest in the property referred to in plaintiff's petition. Neither Fink nor Commerce actively participated in the trial of this cause. Further, there was no claimed interest by Fink or Commerce following the date of the filing of their joint answer, nor did they file a brief or otherwise participate in this appeal. Trans-Missouri and Summit entered into a construction contract for the building of Summit Plaza Center in Holts Summit, Missouri. This contract was under date of May 22, 1978 and was finalized on August 29, 1978, upon the proposal of Mitchell to provide materials for a pre-fabricated 28,000 square foot building. The total contract price for the building was $75,838.12. There was then a change order and taxes applied to the contract price. Trans-Missouri made a down-payment of $7,828.12, leaving a net balance of $68,551.97. Most of the materials necessary to erect the building were shipped in several loads on October 3rd and 4th, 1978. These first loads included an invoice billing for the entire contract price. Subsequent shipments of shorted or replacement items allegedly took place on October 12, 1978, November 14, 1978, December 18, 1978 and January 4, 1979. Demands for payment by Mitchell were made on December 7, 1978 and February 1, 1979, but nothing was paid in addition to the down-payment. On February 8, 1979, Mitchell filed notices of its intention to file a mechanic's lien on Summit's property. These notices were served upon Summit, Trans-Missouri, Commerce Mortgage and the Chicago Title Insurance Company. On March 8, 1979, Mitchell filed its lien statement with the Callaway County Recorder, and on March 21, 1979, filed its lien statement with the Callaway County Circuit Clerk. On March 26, 1979, Mitchell filed its two-count petition in this cause. On April 28, 1980, Summit moved for summary judgment on the basis that Mitchell's lien statement lacked sufficient itemization to constitute a just and true account as required by § 429.080, RSMo 1978. On July 15, 1980, the trial court sustained Summit's motion and entered summary judgment in Summit's favor. Mitchell appealed that ruling and on June 16, 1981, this court reversed the trial court and remanded the case for further proceedings. Mitchell Engineering Company v. Summit Realty Co., 620 S.W.2d 27 (Mo. App. 1981). In that ruling, this court characterized Mitchell as a sub-contractor and further held, relative to the sufficiency of Mitchell's lien statement:

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