109 Mo. 9 | Mo. | 1891
This is a suit for judgment against the contractor, and to enforce a mechanics’ lien against the property of the owners, for the value of lumber, lime and other material furnished the contractor by plaintiff and used in the construction of a business house on a lot in the city of ChillicotljLe. The siiit is against J. Y. Nesbitt as contractor and purchaser of the materials, and Smith, McVey & McG-ee as owners of the lot and building.
The petition contained two counts. The* first was for a special bill of lumber and lime, for which a charge
The second cause of action is based on a running •account for material, the value of each item being stated in the account, except in three instances. One for a number of doors, windows and sashes, the articles being itemized, but the values placed in the aggregate at $440. The second was for yellow pine bars, /casings and mouldings, giving the items of each, $255; and the third fpr another itemized account for doors and windows, $260. The second count in the petition fails to charge in terms that the materials so furnished by plaintiff were used in the construction of the building. It does charge that Nesbitt, the contractor, applied to the plaintiff for lumber and material with - which to construct the building, and agreed to pay the value of all such lumber and material as plaintiff might furnish and supply for the construction of suck building, and, pursuant to such agreement, he did, from time to time, furnish to said Nesbitt lumber and material to be used in the construction of said building of the value of $3,194.06.
Defendants Smith and others, owners of the property, answered over, without objection to the petition, by demurrer or otherwise. In one part of the answer they deny that the material was used in the construction of the building, and, in a special defense, they charge that the account - is fraudulent and wrongful, “in this, that the lime, lumber, laths and other materials therein mentioned, or a great part thereof, was not furnished and used in the construction of said building.; ? Upon a trial to the court, without a jury, a judgment was rendered for plaintiff against Nesbitt for balance
I. On the trial objection was made, by the defendant owners, to the introduction of any evidence under the petition for two reasons. The first was that it did not appear from the petition that the material specified in the account was used in the construction of the building. It is well-settled law in this state that no lien for the value of materials can be acquired, unless they go into the construction of the improvement, and that fact becomes a necessary averment of the petition. It is also a well-settled rule of practice that the omissions or other defects of the petition may be cured by the subsequent pleading of the adverse party. We think, in this case, that the aid given the petition, by the averments in the answer, fairly 'formed an issue, under the pleadings, as to whether, or not, the materials furnished by plaintiff were used in the construction •of-the building. That issue was tried, and complaint now comes too late. Defendants must be consistent .and abide the result of an issue they aided in making. Bigelow on Estoppel [5 Ed.] 717; Hughes v. Carson, 90 Mo. 399; Garth v. Caldwell, 72 Mo. 622.
II. The second objection urged as ground upon which the introduction of the testimony under the petition should have been denied was that “the petition counts separate and distinct contracts and alleges but one notice and lien.” The counts of the petition show that the material specified in the two counts was furnished by plaintiff, to the contractor, under distinct and independent contracts, or arrangements, so much so that it was necessary to declare on the accounts as independent causes of action, in different counts. Only -one lien account was filed, but it covered all the items ■of material included in the two counts. Only one .notice was given to the owners of the property that
There is no provision of the statute requiring a separate account to be filed for each separate contract, under which material may have been furnished, though the material may be entirely different and the contracts independent. The statute requires the account filed to be “a just and true account of the demand due him or-them after all just credits have been given.” The statute evidently only contemplated filing one account, and no reason can be seen for adding anything to its requirements. We agree with the St. Louis court of appeals when it says: “It is permissible to "embrace in an account, filed as a lien, items for work on the same building under different contracts with the owner; but, in order to enforce the lien for the entire work, the evidence must show that the lien was filed within six months after the completion of the work under each contract.” Kern v. Pfaff, 44 Mo. App. 30.
The same may be said of the sufficiency in form and substance of the notice served on McYey. The requirement of the statute is satisfied if the notice informs the owner that the lienor “holds a claim against such building or improvement setting forth the amount and from whom the same is due.” The proceeding is statutory, and that only is required to be done which the statute directs shall be done. R. S. 1879, sec. 3190 Laswell v. Church, 46 Mo. 279.
III. The claim constituting the first count in the petition, as it was filed, consisted of an account, itemizing the material furnished and giving the dates of delivery, without fixing any value to the respective items, but at the close stating an aggregate value of $2,800 for the whole. The items of credits were also given, leaving a balance of only $4.35 due on that account. The petition states in reference to this account that
Objection was made to proof of this account, on the ground that it was not such “ a just and true account of the demand” as was required by the statute. The same objection was made to three bills claimed under the second count in which the dates and items of materials were also given, but only an aggregate value. The question raised on this objection is whether the statute imperatively demands that, in the account filed, a value shall be placed upon each item of work done before a lien for such item can be secured. While the statute is remedial, and should be construed with reasonable'liberality, the right to a lien on the property of one to secure the debt of another is purely statutory, and to secure the right a substantial compliance with all the requirements of the statute, according to its reasonable intent, is essential.
The purpose of the statute in requiring an account of the demand due to be filed was evidently to advise the owner, as well as creditors and purchasers, of the amount of the lien claimed against the property; that the correctness and justice of the demand might be investigated; and that the owner might be able to retain from the contractor enough of the contract price to discharge the claim. It is evident that when the demand claimed to be due, after allowing all just credits, is given, and the items of materials furnished are set out sufficiently in detail to allow an investigation of the reasonableness of the charges made, and to indicate whether the account is for materials for which
It is said in Rude v. Mitchell, 97 Mo. 373: “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 therefor. A lumping item of the whole contract price on the one hand, and the credits on the other, is no compliance with the law at all. The account should
“1882, December 1, for alteration and additions, to buildings numbers 210 and 212, North Third street, as per plans and specifications, $22,287.”
"We understand from this opinion (which is given entirely upon the item of account filed in that case), that the account must show what the materials were, what work was done, and the prices charged. In other words the statute requires more than merely giving “a lumping item of the whole contract price.” It requires a specification of the work done or material furnished, so that it can be seen from the face of the account that the law gives a lien therefor, and that the owner can investigate the reasonableness of the charges. If a lumping price was agreed upon between the parties, no other price could have been specified so that the account would have been “just and true.” We think the account sufficiently specific. Hilliker v. Francisco, 65 Mo. 598; Miller v. Whitelaw, 28 Mo. App. 639; Davis v. Hines, 6 Ohio St. 476.
IV. The sufficiency of the notice served by plaintiff on the owners of the property is challenged by appellants. The notice required to be given the owner, by one furnishing material to the contractor, was served in this case upon McYey alone, and by an acceptance as follows: “Received a copy of the foregoing notice this eighth day of December,” (signed) “A. McVey for Smith, McVey & Co. and Smith & McVey.” The evidence shows that the title to the property was in McYey as trustee for Smith and McYey; that the contract for the construction of the building was signed by McYéy as trustee for Smith and McYey; that McYey had charge of the business of construction; and that McYey was also a member of the partnership firm of Smith, McYey & Co. McGree was the third member
An interesting question was raised as to whether the payments were properly applied by plaintiff under' the circumstances as credits on the account charged in the first count in the petition. Inasmuch as we hold contrary to the rulings of the circuit court, that this account was sufficient under the statute, it makes no difference in the result upon which account the credits were applied, and the question need not be considered.
VI. On the trial, plaintiff, when testifying, was-permitted to detail in evidence statements and declarations made by Nesbitt, the contractor, after the materials had been purchased and delivered. Objections to-this evidence were overruled “as to defendant Nesbitt,” but were admitted as to Nesbitt’s declaration against-himself. It is well settled in this state that such declarations of the contractor are not admissible for the purpose of charging the owners of the property. Philibert v. Schmidt, 57 Mo. 212; Deardorff v. Everhartt,. 74 Mo. 37.
The declarations and admissions of a party to a. suit are, however, always admissible against himself. Nesbitt, the contractor, was a party to this suit, and as against him his declarations were properly admitted. The case was tried to the court without a jury. No-
We have examined with care tbe exhaustive brief of counsel on all points discussed, but find no error for which tbe judgment should be disturbed, and it is, therefore, affirmed.