46 Mo. App. 397 | Mo. Ct. App. | 1891
Lead Opinion
This is an action to enforce a mechanics’ lien by the contractor against the owners of the property. The claim sued for amounted in the aggregate to $1,814.57, of which amount $1,225 was claimed to be due by the terms of an express contract, and $626 for extra work, the aggregate being subject to a credit of $26.43. The petition contains biit one count, including both the express contract and the extra work, but the petition was not challenged on that account. The answer, which purports to be filed by both defendants, contains a general denial, and a counterclaim for damages caused to the defendants by non-performance of the contract. The cause was tried by the court without a jury. ’ No instructions were asked by either party, or given by the court of its own motion. The trial resulted in-a judgment for plaintiff for $1,525, and a finding for the plaintiff on the defendant’s counterclaim. It thus appears that the court found for plaintiff for the full amount of the contract price, and cut down plaintiff’s claim for extra work.to the extent of about one-half. The errors assigned are that the judgment is unsupported by substantial evidence ; that the court admitted illegal evidence for plaintiff; and that it ruled out evidence offered by the defendants, which was ' both competent and relevant.
Proceeding to examine these complaints in their inverse order, we find that the record does not contain any exception whatever to the rulings of the court in
The record does contain three exceptions to the admission of testimony. The first of these is to the admission of the building contract, which was objected to on the ground that it was void and uncertain, and did not show any contract in any tangible form. As the written contract was executed by the owner of the property and purported to cover the entire subject with which it deals, the objection is without merit. The second is to the admission of a plan of the building, referred to in the contract, and shown by the evidence to have been inspected by the defendants before execution of the latter instrument. This objection is also-wholly untenable. The third is to the admission of the lien account, and is the only one worthy of serious consideration.
The trial of the cause was begun on the day on which the plaintiff offered in evidence the lien account. No objection was made to the offer at the time, and the account was thereupon read in evidence. At the conclusion of that day’s proceedings, the defendants requested the court to lay over the further hearing to a subsequent day for the purpose of enabling them to adduce evidence showing the value of the extra work. The court granted the request, and postponed the further hearing of the case for the purpose indicated, and no other. On the day to which the further hearing was thus adjourned, the defendant' moved , the court to exclude from the evidence the bill of items filed with the clerk, and introduced as evidence in this case by the plaintiff ( meaning the lien account). The court refused to entertain the motion on the ground that the hearing had been adjourned for the sole purpose of enabling the defendants to adduce evidence as to the reasonable value of extra work, and the case would not be reopened for other purposes.
This brings us to the controlling question, namely, whether there was substantial evidence to warrant the judgment as far as it affects the lieu. If the plaintiff failed to establish any of the essential facts which would entitle him to a mechanic’s lien, the judgment must be reversed, even though no objections were made to any part of his evidence. A judgment unsupported by substantial evidence, when challenged on that ground upon appeal from that judgment, cannot stand. The law demands that judgments should be rendered upon sufficient pleadings and substantial evidence, and when they are rendered in opposition to this rule they are judgments against the law. As there was substantial evidence that the plaintiff had performed his contract, and had done extra work at least equal in value to the amount awarded to him by the court on that account, there is nothing for review here on that branch of the case. The evidence also shows that he filed his lien account within the time required by law, and instituted his suit to foreclose his lien in due time. The only question still open is, whether such lien account was the account required by the statute.
“St. Louis, September 10, 1889.
i(3Irs. Ellen Cap stick, to Bruns & Weiss, Dr., Carpenters and Builders, 1518 Leffingwell avenue.
“May 16.
‘ ‘ Contract entered into with Mrs. Ellen Capstick, for a two-story framed house, etc., as per
plans for the sum of.......................$1,225.
(Twelve hundred and twenty-five dollars, including a two-room frame house, etc.)
“Exteas.
Porch, 2 story, 4 feet wide, 24 feet long, including painting, and stairs................. $120 00
12 openings of windows and doors at $10 each, including paint........................ 120 00
250 feet composition roofing................ 10 00
Plastering 3 rooms......................... 67 00
2,500 feet of joist siding and scantling....... 50 00
500 feet stair Y. P. flooring................. 12 00
Building permit............................ 2 00
Sliding door — extra....................... 35 00
Front porch............................ 35 00
Extra in and outside painting............... 75 00
Carpenter labor on extra 3 rooms............ 100 00
$626 00
$1,751 00
Credit by roofing paid tor by order.......... 36 43
Balance due................................1,741 57
It is evident upon an inspection of the first item of this account that it is insufficient as a matter of law. diving to the item its greatest probative force, namely,
Rehearing
ON MOTION FOB REHEARING-.
The plaintiff seeks a rehearing and a modification of the judgment. The motion for
We are also asked to modify the judgment by affirming it as a lien judgment to the extent of $300, and as a general judgment for the residue. There is no general judgment to affirm, as none was rendered in the trial court. The trial court was fully aware that a general judgment against a married woman, prior to the revision of 1889, was absolutely void in this state (Higgins v. Peltzer, 49 Mo. 152 ; Napton v. Leaton, 71 Mo. 367; Music v. Dodson, 76 Mo. 625 ; Kerkinson v. Adkins, 77 Mo. 540 ; Coe v. Ritter, 86 Mo. 283), and that' it was wholly immaterial what the nature of the contract was. The fallacy of the argument, that the contract of a married woman, possessing no separate estate, did, prior to the revision of 1889, create a dormant legal obligation on her part, which was made effective by the act of 1889, was exposed by us in Van Rheeden v. Bush, 44 Mo. App. 203. The act of 1889 could not constitutionally, even had it attempted to do so, change the character of a contract of a married woman, entered into prior to the time when the law took effect.
If the plaintiff will within ten days dismiss his suit as to the item of $1,225 in this court, we will affirm the judgment of the trial court to the extent of $300, interest and costs, without, however, suggesting in any manner the effect of such dismissal on the $1,225 item as a subsisting claim. If the plaintiff will not .do so, the cause will be remanded for new trial according to the mandate of the original opinion.