174 Mo. App. 414 | Mo. Ct. App. | 1913
Suit to enforce a mechanic’s lien for lumber and materials sold by appellant to the W. F. Lyons Ice & Power Company for the purpose of, and used in, constructing an ice manufacturing and meat packing plant. A jury was waived and the case was tried by the court. Appellant obtained judgment for $2918.45 on the account sued on, but was denied a lien.
It is clear, from the finding of facts preserved in the record, that the only reason a lien was refused was because the court thought the last two items in the account were sold under a different contract from that under which the rest were sold. If the two last items were sold under a separate contract, they could not be considered as a part of the original account, and if they were not a part of it, then the lien was not filed within six months after the account accrued. All other requirements of the statute for the establishment of a lien were -complied with.
Where the evidence is conflicting, or where the circumstances are such as that different inferences may be reasonably drawn from the same facts, such a question is one for the jury. [Darlington Lumber Company v. Smith Building Company, 134 Mo. App. 316; Cole v. Barron, 8 Mo. App. 509.] This rule is well established and is not disputed. The contention •of appellant is-that the evidence shows that all of the items, including the last two, were sold under one entire general contract, and that there is no evidence upon which can be based the trial court’s finding that the last items were furnished under a different one. If this contention is true, it is within our power to
It should be borne in mind that, so far as the contract is concerned, the only requirements demanded by the statute are that the materials for which a lien is sought must be furnished “under and by virtue of a contract with the owner” ('See. 8212, R. S. Mo. 1909). Of course, this means that all the items in one lien account must have' been furnished under the same contract. But if the evidence shows that all the items were furnished “under and-by virtue of” one contract, then the vendor is entitled to his lien although there may' be-‘facts and circumstances showing that they
In discussing the question when materials are to be considered as having been furnished under an entire or under separate and distinct contracts, Phillips on Mechanic’s Liens, section 229, mentions several circumstances as marks to determine the matter. If the work is distinct in its nature, and is performed at different times, or, if two distinct contracts are in fact made, for different parts of the work, these are marks to show that there was not one entire general contract covering the whole account. “But when material is furnished, all going to the same general purpose, as the building of a house- or any of its parts, though such work he done or ordered at different times, yet if the several parts form an entire whole, or are so
What, now, are the facts in this case bearing on the question of whether the materials were furnished under one entire contract or under two separate and distinct contracts? The contract for the materials was made between Larsen, appellant’s general manager, and W. F. Lyons, who was the president and the owner of practically all the stock in the W. F.. Lyons Ice & Power Company. As stated, the intention was- to build an ice manufacturing and .meat packing plant. Appellant was informed of this, and it was agreed that Lyons would order whatever materials were needed from time to time and that appellant would furnish them. While some of the material was on a list which the two above named men had, yet it was understood between them that this list did not contain all the material wanted, and in fact a great portion of the material never was on any list but was furnished as called for. The material was not furnished according to plans or specifications of the buildings. While Lyons had plans and specifications from an architect by which he proceeded to erect the buildings, yet the contract for the purchase of the materials said nothing about any plans, and appellant never saw them. Neither was the contract limited to any definite or lump sum, nor was any time specified when the account was to close and become due. Both Larsen and Lyons testify to all this, and, as no one else was present, there is no one to dispute the nature of the contract. Neither is it necessary to .rely on any inference or presumption arising from the after, occurring facts, since in the face of this clear and un
The packing-part of the plant shut down in May, 1909, on account of lack of money to operate it.- About October 1, 1909, the Lyons Ice & Power Company leased the packing part of the plant to the Indianapolis Abattoir Company. That company required the Ice & Power Company to finish up as a tallow cooling room a certain portion of the space in the building
But respondent contends that when the lee & Power Company began ordering materials in October, it paid cash for a part of what it then bought and this fact creates a new and distinct contract different from the one under which the former items were sold, which new contract includes the two items which were sold on credit and charged. It is undisputed, however, that appellant did not demand cash. Larsen testifies that he never refused to extend credit and Lyons says the only reason he paid cash was, not because Larsen demanded it, but because the account was already so large, and a payment had not been made thereon for so long a time, that he did not feel like ordering more stuff without paying for it as he got it. As the appellant received cash for certain items no bookkeeping
. The respondent urges that no lien ought to be given because the prices charged on some of the items were greater than agreed upon. The evidence shows that if there was any overcharging it was unintentional, at least it conclusively appears that there was room for an honest difference of opinion as to the prices to be charged. Much lumber was bought in addition to the first list. It is also clearly shown that, if any items were overcharged, they were, and are, easily separable from the others; and as the court found that the plaintiff was entitled to a judgment for a sum less than the amount of the account, it is presumed that in doing so it made all necessary deductions on account of erroneous charges. Certainly, if there were any overcharges included in the account, the plaintiff would not be entitled to a judgment for them and the court would not render judgment for inore than the amount due under the contract. Besides, the court did not refuse the lien on this ground but on the sole ground that the last two items were furnished under a separate and distinct contract. There being no evidence from which it could correctly draw such a conclusion, the case is reversed and remanded with directions to enforce the judgment as a lien upon the building and premises described in the petition.