77 Mo. App. 409 | Mo. Ct. App. | 1898
This is a suit to enforce a mechanics’ lien against a house and lot belonging to the defendant Spilker. The defendant Fischer was the contractor for the construction of the house. The plaintiff claims that it furnished to Fischer materials for the house of the contract value of $283.62,, and that on February 20, 1896, he paid $140 on the debt, leaving a balance due of $143.62. Subsequently a mechanics’ lien was filed. There was no dispute at the trial as to the filing of the lien or the giving of the notice of an intention to file it, or that the materials were not furnished and used in the building. There was some evidence tending to show that some of the window sashes and the columns of the building were not in accordance with the specifications, but were inferior in dimensions and materials, which would make a difference in their value of $4 or $5. The defense was that the plaintiff had waived his right to a lien or that he was estopped to enforce it as against Spilker. The facts relied on. by Spilker, and which his evidence tended to prove, briefly stated are these: Under the contract between Spilker Fischer, the latter was to be paid in installments as the work progressed. Spilker borrowed the money to pay for the house from a building and loan association. After paying the first installment, Spilker and the' secretary of the association required Fischer, before receiving a further payment, to produce a statement of the disbursement of the money last paid to him, in order that Spilker and the association might know and see to it that the money was used to pay the debts contracted by Fischer in the construction of the building.
The cause was submitted to the court without a jury. The defendant asked the following instructions, which the court gave, afid of which the plaintiff complains :
“If from the evidence the court believes that the defendant Spilker on the faith of the receipt from plaintiff to the contractor Fischer for $140, dated February 20, 1896, presented to him by said Fischer, paid on February 20, 1896, to said Fischer the third payment, amounting to $400 agreed to be paid under the terms of the contract between him and said Fischer, which otherwise he would not have paid, and that at said time Fischer had not paid to plaintiff the money for which said receipt purported to have been given, then plaintiff has waived its right of lien to the extent of said $140, as agaiust the defendant Spilker.”
“Even though the court from the evidence finds that the $140 receipted for by plaintiff to Fischer, on February 7, 1896, was actually paid by said Fischer to
The court found the issues for Spilker, and judgment was entered in his favor as to the lien. The plaintiff has appealed.
The first objection urged by plaintiff against the foregoing instructions is, that there is no evidence that the plaintiff knew the use that Fischer intended to make of the receipt. Mr. Trebus, the secretary of the building and loan association, testified that Mr. Humber, the president of the plaintiff, admitted and so testified on a former trial of the cause, that he gave the receipt to Fischer to enable him to collect the second instalment then due under his contract with Spilker. This is sufficient to dispose of the objection.
The second objection is, that the declarations of law ignore the question of plaintiff’s alleged knowledge of the use which Fischer intended to make of the receipt, which plaintiff claims was necessary to create an estoppel. Technically speaking, the instructions are faulty in the respect complained of. It does not follow, however, that the judgment must be reversed on account of this defect. The plaintiff failed to contradict the testimony of Trebus as to the admission of Humber on the first trial, and it failed to show by any affirmative evidence that its officers had no knowledge that Fischer intended to make use of the receipt to get the other instalment due him. The statute provides, that the judgment shall not be reversed, unless the appellate court shall believe that error was committed by the trial court against the appellant, which materially
Again it is insisted that there is no evidence to show that Spilker was injured by the use of the receipt by Fischer. The evidence shows that Spilker required Fischer to show what disposition he had made of money previously paid to him, in order that the former might know that he could safely make other payments; that on the faith of the receipt Spilker made another payment to Fischer; that the latter failed to pay the debt he contracted for labor and materials about the construction of the house, and that Spilker was compelled to pay them in amounts in excess .of the balance due Fischer under the contract. The fair inference to be drawn from this evidence is that but for the receipt which Fischer exhibited to Spilker the latter would not have made the second payment, but would have retained and used it in paying the liabilities against his house. We, therefore, conclude that this objection is not well taken.
With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so ordered.