35 Mo. App. 330 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action was brought against the defendant, Raeman, as the owner of a certain lot of ground in the city of St. Louis, and against the defendant, O’ Reilly, as trustee and the defendant, Howard, as the beneficiary in a certain deed of trust thereon, to recover of the owner the contract price of certain brick work done by the plaintiff in building the house on said lot, and to enforce a mechanic’s lien therefor against the property.
The petition recites the contract which is the foundation of the action and its performance, as follows: “That, on or about December 15, 1886, defendant Raeman contracted with plaintiff to furnish all the materials for and perform the labor of laying ninety-five thousand, three hundred merchantable brick, as per brick measurer’s measurement, worth $9.82£ per thousand, or in all nine hundred and thirty-six dollars ; and said Raeman agreed to pay plaintiff that sum therefor. That thereafter plaintiff furnished all the material for and performed the labor of laying the said ninety-five thousand, three hundred brick as per measurement, into the walls of said building.” The mechanic’s lien paper, which was filed in the office of the clerk of the circuit court, sets out, “the just and true account” required by the statute as follows :
“Felix Raeman, to James Gr. Doyle, Dr.
“Deo. 22, to March 10, 1887. To furnishing all the material for and laying ninety-five thousand, three hundred merchantable brick at $9.83| per M...$936 00
“Contra:
“By payments on acc’t................ 136. 55
“$799 45.”
The first position of the appellants is that the proof failed to sustain the allegations of the petition. Their argument is that the account set out in the lien as filed would ordinarily be taken to mean ninety-five thousand, three hundred brick by numerical or actual count, which, as the evidence shows, would be about twenty-five per cent, more brick than the same amount of brick by wall measurement. The second and. third objections are grounded upon the same idea, These objections are answered by the decision of this court in McLaughlin v. Schawacker, 31 Mo. App. 365, where the items as stated in the lien paper were as follows:
“To labor and materials in furnishing and putting into building of Chris. Sehawacker, 414 S. Third street, St. Louis, Mo. (including brick, mortar, labor and all materials), 10,157 stock brick, at $43 per M...................$436 57
“To labor and materials in furnishing and putting into same building (including brick, mortar, labor and all materials ), 345,073 hard red brick, at $13.50 per M......................$3063 40.”
It was observed of this account by this court that it was “ framed with a view of making separate charges for two classes of brick, laid in the wall, according to what is known as wall measurement, which is the
As the petition in this case was drawn in express terms with the view of charging for the work according to bricklayers’ measurement, which the evidence shows to be the same as wall measurement, and also to be the measure prescribed by the statute, there was no variance between the petition and the evidence.
We are asked by the respondents to affirm this judgment with ten per cent, damages. The respondent presses upon our consideration the view that this is a case where a mechanic is seeking to enforce the lien given him by the statute for a demand which is established by uncontradicted evidence ; that the decision of this court, in McLaughlin v. Schawacker, was rendered on June 5, 1888, long before the trial of this action took place; that that decision disposes of the only substantial objections made by the defendants in this case ; that the plaintiff has been put to the expense of prosecuting an appeal in this court which is either frivolous or vexatious, and ought to be reimbursed as far as the-court has the power to reimburse him, by an award of damages under section 3777, Revised Statutes, which empowers the court, in affirming the judgment or decision, “to award to the appellee or defendant in error, such damages, not exceeding ten per cent., on the amount of the judgment complained of, as may be just.” In response to this application the learned and diligent counsel for the appellants suggested at the bar that the decision of this court in McLaughlin v. Schawacker, supra, was not known to him, until he had commenced the preparation of his brief, the official report not having been published when the appeal was taken. The decisions of the appellate courts in this state are so numerous that we apprehend that we go far enough when we hold counsel to a knowledge of our decisions after they have been officially reported.
The judgment will be affirmed without damages.