Dwyer Brick Works v. Flanagan Bros., 87 Mo. App. 340

87 Mo. App. 340 | Mo. Ct. App. | 1901

BROADDUS, J.

This action was begun on the seventh day of December, 1899, and was tried on the twentieth of June, 1900, at which time finding and judgment were for plaintiff, for $411.50, and sustaining a mechanics lien for that amount against the property of defendants Laura Myers and George M. Myers, who have appealed. The plaintiffs Ered J. Dwyer and Bernard Corrigan sue as partners doing business under the firm name of Dwyer Brick Works. The defendants J. W. Flanagan and August Flanagan are sued as partners doing business under the firm name of Flanagan Brothers, and as subcontractors of defendant Matt O’Connell, original contractor.

The petition alleges a contract between O’Connell, the original contractor, and defendants Myers, the owners of the property against which it is sought to establish the lien; .alleges that plaintiffs furnished the material (brick) to the subcontractors that went into the construction of the building on the lots described; alleges notice of the intention of plaintiffs to file their lien and the filing of same in due time as provided by law. The answer admits defendants’ ownership of the ground on which the building and improvements were erected; admits that they are husband and wife; admits that O’Connell was the original contractor for the erection of the-improvements and that O’Oonnell was to furnish all the material and labor necessary to build and complete the work. It denies all the other allegations.

During the trial it was shown that Bernard Corrigan had no interest in the partnership, but Edward Corrigan was the partner, whereupon plaintiff was allowed to amend, over the ■objections of the defendants, by dismissing as to Bernard Corrigan and substituting the name of Edward Corrigan. Appellants claim that this was error and cite Grier Bros. v. Assurance Co., 183 Pa. St. 334. Without entering into a discussion of the effect of the decision in that case, it is sufficient to say that the mechanics’ lien law of this State provides that “the pleadings, practice and other proceedings in cases arising under this article shall be the same as in ordinary civil actions and proceedings in circuit courts, except as herein otherwise provided.” R. S. 1899, sec. 4210. The code of practice of Missouri is liberal in allowing amendments in furtherance of justice, when they do not change substantially the claim or defense of the parties to the suit: see section 657, Idem; and bringing in new parties: see section 658. In dismissing as to Bernard Corrigan and substituting the name of Edward Corrigan, neither plaintiffs’ claim nor defendants’ defense was changed in the least. The rights of parties and the subject of the action were the same.

There was some evidence on the trial that the plaintiffs had entered into a combination with other brickmakers of Kansas City to regulate the selling price of brick in that market. Plaintiff Dwyer in his testimony on cross-examination stated that there was an agreement among the brickmakers regulating the price of brick, at the time the brick in suit were furnished, but when recalled he said there was no such agreement among brickmakers, but there was among the bricklayers, and denied having made the statement -in his prior evidence. The point is made that if such was the fact the plaintiffs could not recover. See chapter 143 on pools, trusts and conspiracies, from sections 8966 to 8970, inclusive (Revised Statutes 1899). As there was no allegation in the character of an affirmative defense in the appellants’ answer against plaintiffs’ right to recover because they had entered into an unlawful combination with other dealers, such as are prohibited by said chapter on pools, trusts and conspiracies, it was not an issue before the court. That every cause tried by court and jury must be tried upon the issues made by the pleadings, is an indisputable maxim. Section 8970, Revised Statutes 1899, reads: “Any purchaser of any article or commodity from any individual, company or corporation transacting business contrary to any provision of this article shall not be liable for the price or payment of such article or commodity, and may plead this article as a defense to any suit for such price or payment.” The purchaser is not required to plead the statute. He may or may not do so, but if he wants to avail himself of the defense, he must plead it. The court was compelled to disregard any evidence offered or introduced in the case tending to show that plaintiffs had entered into such combinations as are prohibited by the statute, because no such issue was involved in the trial.

Objection was made to tibe notice given of plaintiffs’ intention to file tbeir lien, for the reason that the names of the parties constituting the firm were not mentioned, the notice being signed only by the name of the firm “Dwyer Bros. Brick Works.” The objection was overruled. In support of their objection, appellants cite among others the case of Schulenburg v. Bascom, 38 Mo. 188. In that case there was only a writing unsigned, which the court properly held to be insufficient. In Miller v. Hoffman, 26 Mo. App. 199, the notice was signed by the partnership'name of “Miller & Fathman, by Julian Laughlin, their attorney.” The court in passing upon the notice held that it was sufficient and distinguished that case from Schulenburg v. Bascom, supra, saying: “We think the notice was formally sufficient. The claimant’s name was signed to it by authority, and it advised the defendant from whom it came, and who held the.claim. In all these respects it is essentially different from the notice condemned in Schulenburg v. Bascom:” see, also, Steinmann v. Strimple, 29 Mo, App. 485.

The appellants objected to the introduction of plaintiffs’ demand, upon which this action is based, for the reason that the same was not such an account as the statute requires to be filed with the circuit clerk in order'to create a lien. The account amounts to $1,520 with credits reducing the claim to $411.50. This paper is called “Exhibit A,” and runs thus:

1899.

April 19 1000 Red at $6.50.

April 20 5000 Red at $6.50.

May 8 18000 Hard at $6.50.

May at $6.50.

May at $6.50.

The account continues through the balance of May, through to June 23., with an item for most of the days for that time in each instance marked “hard.” On July 24 there is an item again of “red,” August 30 item “hard,” and closes September 2, item “red.” There is not a word in the whole account or in the affidavit attached as to what materials were included under the terms “red” and “hard.” The respondents claim that as the account shows that the firm of Dwyer Bros. Brick Works was the claimant, that was a sufficient description of the material in the account, for the reason that the court will take judicial notice that by its name it must be presumed to deal alone in brick; and refers in support of their position to Henry v. Plitt, 84 Mo. 237. The court in speaking of the account in question in that case said:

“It is also objected that'the account does not comply with the law in disclosing the character of the items composing it. This objection is not well taken. It is true that in most of the items only figures are used and not words, to indicate the thing as well as the amount furnished. But the heading of the account shows that the figures relate to lumber.” But there is no heading to the account in this case “for brick.” The figures have nothing to refer to and “hard” and “red” do not indicate the material. In Rude v. Mitchell, 97 Mo. 365, in referring to the statute, the court uses the following language:

“Many things are often included in these building contracts for which the law gives no lien; and when it calls for a just and true account, it means a fairly itemized account showing what the materials are, and the work that was done, and the price charged, so that it can be seen from the face of the account that the law gives a lien.” In this case the respondents resorted to extrinsic evidence to explain what was meant by the terms “hard” and “red,” but the law is that this must appear upon the face of the account. See, Grace v. Nesbitt, 109 Mo. 19; also, Rude v. Mitchell, supra.

It is true that the tendency of the courts is to a liberal construction of tbe mechanics’ lien law, because it is in its nature remedial, but they have not yet gone the length of construing away the safe and reasonable restriction, requiring the lienor to file “a just and true account” of his demand.

Cause reversed as to appellants Myers.

All concur.