165 Mo. App. 442 | Mo. Ct. App. | 1912
This is an action by the materialman to recover a claim for $297.35 for material furnished the contractor who erected a building on a lot in the city of St. Louis, the material to be used in that building, and to have that claim declared a lien on the premises owned by or in which the defendants, other than Pottinger, the contractor, have an interest. The jury returned a verdict in favor of plaintiff against the contractor for the debt but denied the lien. After an unsuccessful motion for a new trial and judgment following the verdict, paintiff has duly perfected its appeal to this court.
It appears that this was the second trial of the cause, the verdict in the first having been set aside on the grounds, among others assigned, that the verdict of the jury in finding against the lien was against the evidence, the weight of the evidence, against the law and against the instructions of the court. At this second trial the lien account in evidence sets out the material claimed to have been furnished and which went into the building with minute particularity as to dates, items, prices and values. Among other items included are two window frames and windows and blinds appertaining thereto, valued at eight dollars and alleged to have been delivered by plaintiff tó the contractor at the building, the original plans and specifications of the building calling for
The tesimony for plaintiff tended to show that when it filed the lien account, it did not know that these window frames and blinds had not been used. Testimony of the defendants was to the contrary. Another of these blinds said to be worth one dollar, although delivered, was not used because if hung it would have projected over an adjoining lot. That it was not used was not known to plaintiff until that fact was developed at the trial. Seventeen doors were charged for and delivered at the building. Three of the value of seven dollars although called for in the plans and contract, were not’used and that fact was not known to plaintiff until it developed at the trial. The total value of these windows, doors and the blind was sixteen dollars. It was also contended at the trial that a cedar post charged for was not used and that four joists furnished were smaller than those charged for, and that a corresponding reduction in price should have been made.. The evidence as to these last two items was conflicting.
At the close of the testimony plaintiff gave a credit of sixteen dollars for the three items first above mentioned.
The errors assigned before us are to the giving and refusal of instructions. Plaintiff asked an instruction, numbered 1, to the effect that an inadvertent or unintentional misstatement of some of the items in the lien account as having been used in the building does not vitiate the whole account nor prevent the obtaining of a lien °for the items which are correctly stated and which have been used in the building. This was refused. The court also refused instruction numbered 2, asked by plaintiff, which is to the effect, that plaintiff, at the trial, having given credit for sixteen dollars
The court, at the instance of defendants, gave among other instructions two, which are numbered respectively 1 and 3, the giving of which is assigned as error. Instruction No. 1 told the jury that if they found from the evidence that plaintiff, by any of its managing officers, “at the time it filed its lien account with the
Taking up the assignments of error on the refusal of the instructions asked by plaintiff, we think the assignments well taken. The first instruction asked, in a very compact and clear way, states the law as applicable to this class of cases. Counsel for respondent argues that the evidence shows that there was neither inadvertance nor unintentional misstatement as to the items in dispute. In making this contention counsel are giving too narrow a construction to the word “unintentional,” as used in section 8223, Revised Statutes 1909. That section allows judgment to go sustaining a lien “although the creditor may have unintentionally failed to enter in his account filed the full amount of credits to which the debtor may be entitled.” "Whether these items referred to, which beyond question were furnished for use in the building, but after-wards either torn out or not used, were or were not lienable, would present to the layman a legal problem which the courts have often had a great deal of trouble in solving. As an illustration of this, we refer to the very recent decision in this court of Darlington Lumber Company v. Westlake Construction Company, 161
This first instruction is practically in the language of section 8223, Revised Statutes 1909, as that section is construed by our court in Eau Claire-St. Louis Lumber Co. v. Roeder, 81 Mo. App. 337. We conclude, therefore, that it should have been given and that it was error to refuse it. We may add that under the facts as in evidence here on a new trial, the like facts appearing, it will tend to aid the jury if they are instructed as to the meaning of ‘ ‘ unintentional ’ ’ as used, and as we have here indicated.
For the errors which we have pointed out, the judgment of the circuit court must be and is reversed and the cause is remanded.