Curless & Co. v. Lewis

46 Mo. App. 278 | Mo. Ct. App. | 1891

Ellison, J.

This action is to enforce a mechanics’ lien on the following account filed with the circuit clerk:

“Lamar, Missouri, July 16, 1888.

“ J. S. Lewis to Curless & Co., Dr.:

To 659, and 13-33 perch of stone, furnished on the ground at 68 cts. per perch.............$450 00

To 104 perch of stone, furnished at 80 cts. per perch...................................... 83 20

To 298 feet dimension stone at 10 cts. per foot.. 29 85

“Total. 1.................................$563 05

By payment on account.................. 357 00

And.to balance due............................$206 05

The affidavit attached thereto gave no dates, but stated that the “said demand accrued within six months prior to the filing of this lien.” The circuit court refused to admit this lien paper in evidence, and gave judgment for defendants. Plaintiffs appeal.

The court’s action was proper. The account should have shown when the material was furnished. We cannot accept the date, July 16, 1888, as being the date at which the account accrued, from the fact that the lien was filed with the clerk on April 25, so that the account, of course, must have been made up before that time, which excludes the idea that the date at its head was intended as anything more than the time when it was made out. The statute requires a just and true account to be filed as a foundation of the lien. This means that the account must give the items and dates, and tlie fact that the affidavit may show that the account accrued within six months does not make the account as such, any more specific, unless it be the last item thereof. The statement that the account accrued within six months at best is merely that the last item was furnished within six months. The other items might cover a long space of time, and if the dates were given it might appear upon the face that the account was not one account, and that a portion of it should not be included in the lien. If there should be other incumbrances it might be of great practical importance to know the dates of the items so as to settle priorities. In Coe v. Ritter, 86 Mo. 286, it became necessary to settle which was prior, a mechanics’ lien, or a deed of trust, and it was determined by the date of the first items of the account.

There can be no doubt that'the ordinary meaning of the statutory expression, “a just and true account,” is an itemized account, with dates.

If an individual demands a true and just account, there is no doubt but it would be expected he was to get one with items and dates. It has been decided that the statutory account must be such a one as that ‘ ‘ it maybe seen from the face” thereof that it is one for which a lien may be had. Rude v. Mitchell, 97 Mo. 365; Coe v. Ritter, 86 Mo. 277. In the latter case, though this precise point was not before the court, yet the court says, that the accustomed meaning of the words, “a just and true account,” is that it shall contain the various items and dates which go to make it up. See also Bradish v. James, 83 Mo. 316 It follows that the judgment should-be affirmed.

All concur.