134 Mo. App. 316 | Mo. Ct. App. | 1908
In this action, plaintiff seeks a personal judgment against the defendant building company and the enforcement of a mechanic's lien against the buildings now owned' by the other defendants. At the conclusion of the evidence on behalf of the plaintiff, the circuit court peremptorily directed a verdict to the effect that the lien could not be enforced against the property. Plaintiff recovered a personal judgment against the Smith Building Company for the amount sued for and appealed from the ruling of the court with respect to the lien sought to be enforced against the buildings owned by the other defendants. Plaintiff furnished materials for the buildings and the important question in the case relates to the continuity of the lien account.
The first item of account is of date January 18, 1904. It appears from the account that materials were furnished every few days until December 9, 1904, and no materials were furnished thereafter during the interim of nearly six months, or until June 6, 1905. Our statute, sec. 4203, E. S. 1899, sec. 4203, Mo. Ann. St. 1906, gives a lien to the materialman for materials
The lien in this instance was filed September 6, 1905, and within six months from the date of furnishing the last item of material, in amount, $1.70, ón June 6, 1906. • If, however, the continuity of the account under the original contract, ceased with the item of December 9, 1904, then the lien was filed out of time and the court properly directed a verdict to the effect that it could not be enforced. To have justified the court in directing a verdict for the defendant, there must appear no substantial evidence tending to prove continuity'of the account after December 9, 1904; or in other words, there must appear no substantial evidence tending to prove that the item of June 6, 1905, was intended by the parties as parcel of the continuing account for materials furnished under the original contract. [Routsong v. Railway, 45 Mo. 236; Moody v. Deutsch, 85 Mo. 237, 243.] Prom what has been said, it appears the question for decision is whether the evidence wholly fails to show continuity of the account-after December 9, 1904, and conclusively establishes that the lumber furnished on June 6, 1905, was not contemplated by the parties as an item of the continuing account and is therefore extraneous of or not within the original contract.
The evidence on the part of plaintiff tended to
Defendant’s counsel insists the plaintiff’s account was completed and therefore the indebtedness accrued on December 9, 1904. Much stress is laid upon the circumstance that the dray ticket pertaining- to the item for lumber furnished on June 6, 1905, was marked “extra.” It is said this signifies the lumber then furnished was not under the contract out of which plaintiff’s account arose. The fact of the indorsement “extra” on the dray ticket is np doubt a circumstance tending to prove that the materials therein mentioned were extraneous of the contract. However this may
The judgment will be reversed and the cause remanded. It is so ordered.