Gunther v. Roy
1898 Mo. App. LEXIS 358
Mo. Ct. App.
1898
Check Treatment
Bland, P. J.

Statement. — Defendant Robert L. Roy,, under a .contract made with the other defendants, as trustees of the Methodist Episcopal church, south, at Shelby-ville, Missouri, erected a church edifice for said church. Roy purchased of the plaintiff hardware of the value of $92.50, for, and which was used in the construction of, the building. The plaintiff gave notice and filed a lien paper and brought suit against Roy and the trustees of the church to establish and enforce a mechanic’s lien against the church and lot upon which it stood, for the payment of his account of $92.50, which Roy had failed to pay. The issues were tried by a jury, who returned a verdict against j e J 7 ° Roy for $92.50, and for plaintiff- establishing a lien upon the property described in the petition. Judgment was rendered for plaintiff on the verdict, from which after unsuccessful motions for new trial and in arrest of judgment, the trustees duly appealed. The suit was begun October 27, 1896. The date of the last item of the lien account is April 20, 1896. The contention of appellants is, that the true date of the last item is February 13, 1896. If this be so, then the suit was not brought within four months from the *600accruing of the account and plaintiff’s right to establish his lien was barred by the statute when he brought his suit. To substantiate this defense appellants read in evidence two statements of Roy’s account rendered by plaintiff, in both of which the last item of the account is dated February 13. One of these rendered in May has at the end of the account on credit side this statement: “2 sets F. D. Locks — Even Exchange.’-’ The lien account has the following entries on the debtor side:

Feb. 13, 48% Pr. 4x4 24% D. 2 Butts....................$20 85
March 27,1 Setts O. 2290-24 B. Looks----'................ 7 00
April 20, 1 Setts C. 2290-24 B. Looks.................... 7 00
And on the credit side April 14th, By 2 Setts C. 2298 Locks..$14 00

Appellants claim that the last two items on the debit sidte of the account are the two locks which were exchanged even on April 14. If this be so, then the last item of plaintiff’s account was sold to Roy February 13, and there is no lien. The plaintiff, however, adduced testimony contradictory of this theory and tending to prove that the account as stated and filed with his lien declaration was correct in every particular, and that the last item of the account was sold to Roy on the twentieth day of April, 1896. This issue of fact was submitted to the jury by appropriate instructions, and their verdict as to this question of fact is conclusive in this court. Appellants contend that the instructions given were erroneous. We think otherwise; they were fair, unambiguous and correctly declared the law of the case and are above criticism. The court, over the objection of the appellants, admitted in evidence the following letter written by one •of the defendants to the plaintiff on June 17, 1896, to wit:

*601 11M. E. C. Gunther, Quincy.
“Dear Sir: — Yours at hand. Mr. Roy is behind on payment of some of his bills. His brother, R. F. Roy, judge of this district and one of his bondsmen, says in about two weeks he will be through with his court and he will perform his obligation. That means if R. L. Roy, his brother, can not meet the payment he will. I don’t think any body will lose anything on Mr. Roy. His bondsmen I think will settle all his bills. Yours,
“J. J. Hewitt.”

Irrelevant testimony: This letter was not relevant or pertinent to any issue in the case. The evident purpose of reading this letter was to inform the jury that the , '' church would not be financially hurt by a verdict establishing the lien, as it had the bond of Judge Roy to indemnify it against loss on account of plaintiff’s claim. Such testimony should not have influenced the jury, but we are not prepared to say that it did not. A jury must in every case believe that all the testimony admitted by the court and not withdrawn from their consideration, is proper testimony, and that they, under their oaths, are bound to consider it. We must therefore take notice of the fact that the jury when they made up their verdict had in view with all the other evidence, this irrelevant letter. What influence it may have had in the formation of the verdict, uo man can know. The presumption is that the jury did not disregard it, and that it had its influence over the minds of the jury. That influence was to the prejudice of the appellants, and deprived them of a fair and impartial trial of the issues* on competent and relevant testimony. For this error the judgment is reversed and the cause remanded.

All concur.