 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Meco Systems2/14/2001
bcontract, for each contract expressly includes the other." Continuing, it asserts: "The net effect is that if there truly was a conflict on anything, the subcontract prevails and removes any ambiguity."
This argument fails, however, as it ignores the fact that Article 1.1 of the Main Contract similarly purports to ascribe superiority to its provisions. Specifically, Article 1.1 of the Main Contract provides, inter alia: "If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall govern." Thus, what MECO characterizes as a "supremacy clause" in Article 1.2 of its subcontracts is countermanded by a similar "supremacy clause" in Article 1.1 of the Main Contract. Because of the supremacy clause in Article 1.1 of the Main Contract, any attempted resolution of the conflict between the two contracts by resort to the supremacy clause in article 1.2 of the subcontracts results in a circuitous analysis which settles nothing. We reject MECO's arguments to the contrary.
There is no dispute that MECO prepared and provided the subcontract agreements. Consequently, the burden of clear and unambiguous expression of the risk-shifting provision was on MECO. Graue, 847 S.W.2d at 785; Dec Elec., 558 So.2d at 429. Because MECO has not met that burden, the "pay if paid" provision must be construed as establishing a reasonable time to pay by MECO rather than creating a condition precedent to MECO's obligation to pay Subcontractors. See American Drilling, 614 S.W.2d at 273. MECO remains liable for the final payments owed Subcontractors. The trial court did not err in rendering judgments for Subcontractors against MECO. Point II is denied.
POINT III: MECO'S SUBROGATION RIGHTS TO SUBCONTRACTORS' LIENS?
MECO's third point complains the trial court erred when it failed to invoke the equitable principle of "subrogation" and declare that, to the extent MECO pays Subcontractors, either voluntarily or involutarily, MECO should be entitled to the security held by Subcontractors, mainly, the Subcontractors' mechanics' liens. Stated otherwise, MECO charges the trial court erred when it failed to "award MECO a right of subrogation against the Subs mechanic's lien against the property."
In developing this point, MECO argues that section 429.270, RSMo 1994, and case law interpretations thereof make it clear that mechanics' lien cases are proceedings in equity in every sense of the word and for every purpose, including application of the equitable doctrine of subrogation. See, e.g., Huggins v. Hill, 236 S.W. 1051 (Mo.banc 1921) (holding mechanic's lien action is equitable, not only because the statute so denominates it, but is equitable in substance). MECO then cites Cole v. Morris, 409 S.W.2d 668 (Mo. 1966), a workers' compensation case, to explain the equitable nature of subrogation:
"Subrogation is founded on principles of justice and equity, and its operation is governed by principles of equity. . . . It has been said that '* * * the right of subrogation * * * is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by the one who in fairness and good conscience ought to pay it. Though the doctrine is equitable in its origin, the right acquired is generally referred to as legal subrogation; * * * ' Legal subrogation arises by operation of law where a person having a liability * * * in the premises pays a debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditors whom he has paid." Id. at 670 (citations omitted).
Based on the Cole court's analysis of subrogation law and the equitable nature of mechanics' lien s
Page 1 2 3 4 5 6 7 8 9 10 11 12 Missouri Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|