Cahill, Collins & Co. v. Orphan School of the Christian Church, 63 Mo. App. 28

63 Mo. App. 28 | Mo. Ct. App. | 1895

Smith, P. J.

This is an action which was brought by plaintiffs to enforce a mechanics’ lien for labor and materials furnished in the erection of a heating apparatus for defendant. There was a trial resulting in judgment for plaintiff, to reverse which, defendant appealed.

The defendant complains of the action of the trial court in permitting plaintiff, over its objection, to introduce any evidence, on the ground (1) that there is no sufficient description of the land in the petition. The description so objected to is as follows: “One acre of ground in the west one half of the southeast quarter of section 8, township 47, range 9, in Callaway county, Missouri, more particularly described as follows: Beginning at a point twenty feet due east of the extreme northeast corner of said Orphan School building in the above described west one half of the said one fourth section, thence south two hundred and ten feet; thence west two hundred feet; thence north two hundred and ten feet: thence east two hundred feet to the place of beginning; said buildings, improvements and premises were, at the time said work was done and materials furnished, and are now, the property of defendant.”

The statute requires- that the lien paper shall set forth a true description of the property (or so near as to identify the same), upon which a lien is intended to apply. R. S., 6709. The rule is that, if the description is specific and definite enough, so as to enable one familiar with the locality to identify the premises intended to be covered by the lien, it is sufficient. Holland v. McCarty, 24 Mo. App. 82; Buchanan v. Cole, 57 Mo. App. 11; Bradish v. James, 83 Mo. 313; DeWitt v. Smith, 63 Mo. 263. It was clearly proved by the testimony of the witness, Baily, that from the description he could find and identify the ground on which the building was located. We think the description quite sufficient.

And (2), that the lien paper does not set forth a just and true account, after all credits had been given, nor are there any dates stated, by which it can be ascertained when the items in the first section of the count were furnished. The lien paper sets forth the following account:

“St. Louis, Mo., November 1, 1892.

“Orphan School of the Christian Church of Missouri, Fulton, Mo., Dr. To Cahill, Collins & Co., St. Louis, Mo.

“contract.

“Goods furnished from September 1, 1890, to July 2, 1892.

"To 80 ft., 5 in. pipe connected in place, 70c........... .$ 56 00

Seventeen other items amounting to................. 4,394 00

Total......................................$4,450 00

By cash.........................................$2,450 .00

Balance due...................................... 2,000 00

Goods furnished from April 15th to July 2, 1892:

(Extra Work.)

To 297 ft. and 3-4 in. pipe at 6c................. $ 17 82

Seventy-six other items amounting to.................. 466 28

Total..................................... 2,484 09.”

It is to be observed that the lien account on its face shows that there were “seventeen other items, amounting to $4,394,” and “seventy-sis other items amounting to $466.28.” Here are two lumping charges which aggregate nearly $5,000, and yet no intimation is given of what these numerous items consist nor the price of any of them. When the statute calls for a just and true account, it means a fairly itemized account, showing what the materials are, and the work that has been done and the prices charged, so that it can be seen from the face of the account that the law gives a lien therefor. The account must show what the materials were, what work was done, and the prices charged. A lumping item of the whole contract price, on the one hand, and the credits on the other, is no compliance with the law. The account should be complete on its face. Reed v. Mitchell, 97 Mo. 373; Grace v. Nesbitt, 109 Mo. 9. In the absence of a specification of the items, the owner has no basis for an investigation of either their reasonableness" or lienability.

It is. true that in cases where a lumping price is agreed upon between the parties, no other price could have been specified, so that the account would have been just and true. Grace v. Nesbitt, supra; Hilliker v. Francisco, 65 Mo. 598; Miller v. Whilelan, 28 Mo. App. 639. But here there are two lumping charges, without a specification of either’ the material or work of which they are composed, so that it can not be seen from the face of the account that the law gives a lien for the amount of such charges.

The defendant further complains of the action of the court in refusing to allow • it to ask the witness Allen what was the difference between the value of the apparatus as it then stood, and one that would heat the defendant’s building to seventy degrees in zero weather. The plaintiff’s action is indebitatus assumpsit, to recover what the apparatus and the work of putting the same in defendant’s building was reasonably worth. The evidence tends to show that the apparatus and labor, for the reasonable value of which plaintiffs sue, was furnished under a contract. This contract was, we think, in the nature .of a building contract. Globe L. & H. Co. v. Doud, 47 Mo. App. 438; Tower v. Pauly, 51 Mo. App. 75; Halpin Mfg. Co. v. School Dist., 36 Mo. App. 372. It is now well settled that if one party, without the fault of the other, fails to perform his part of a contract of this kind, in such manner as to sue on it, still if the other party has derived benefit from the part performance, the law generally implies a promise on his part to pay such remuneration as the benefit conferred is reasonably worth, over and above the damages resulting from noncompliance by the builder. Yeats v. Ballentine, 56 Mo. 530; Mohney v. Reed, 40 Mo. App. 112; Smith v. Coal Co., 36 Mo. App. 567; Halpin v. School Dist., supra; Globe L. & H. Co. v. Doud, supra. The testimony which was sought to be elicited by the defendant of the witness was manifestly irrelevant, for it would not have any tendency either to prove the reasonable value of the apparatus when placed in defendant’s building, or the damages, if any, the defendant had sustained by reason of-the plaintiff’s failure to perform their contract.

It results that the judgment on the lien will be reversed, and a general judgment entered here for the amount of the debt without a lien, the costs of the appeal to be adjudged against plaintiff.

All concur.