109 Mo. App. 333 | Mo. Ct. App. | 1904
This action was commenced before a justice of the peace upon the following declaration of right of action:
“Plaintiff states that defendants, Elvans R. Darlington, James G. Berryhill and S. L. Berryhill, were at the times hereinafter mentioned, copartners, doing*338 business under tbe name and style of E. R. Darlington & Co., and being engaged in tbe lumber business in tbe city of St. Louis, Missouri.
“Plaintiff states that between the twelfth day of April, 1902, and the twenty-fourth day of May, 1902, plaintiff was a carpenter and builder, did perform certain work and labor upon a certain theatre building, twelve booths, stable, ticket office, fences and seats at the request of one Carrigien Boshgaotur, who was lessee' thereof, upon the following described lot of ground in the city of St. Louis, to-wit:
“A lot or tract of ground in city block No. .4595 of the city of St. Louis, fronting 140 feet more or less, on Clayton avenue, by a depth of 120 feet more or less, said lot being the southeast corner of said city block and fronting on the north line of Clayton avenue, between Tamm avenue and Kraft avenue.
“Plaintiff further states that he furnished all the work and labor on said theatre, booths, stable, ticket office, fences and seats, and that under the laws of the State of Missouri, he became entitled to a mechanic’s lien upon said improvements for the work and labor done by him; that the work and labor done by him upon said improvements as aforesaid, were reasonably worth the sum of $652.35; that there had been paid thereon the sum of $75, leaving due plaintiff a balance of $577.35, for which he filed a lien in the office of the clerk of the circuit court of the city of St. Louis, and on the twenty-sixth day of August, 1902, and thereafter, on August 27, 1902, brought his suit to establish said lien to the extent of $499.35, before Robert Walker, Esq., a justice of the peace of the city of St. Louis, Missouri, and that said suit to establish said mechanic’s lien was duly tried and heard before said Robert Walker, Esq, who did on the twenty-second day of October, 1902, render judgment in said cause establishing'said lien for the sum of $499.35.
‘ ‘ Plaintiff further states that defendants Evans R.*339 Darlington, J. G. Berryhill and S. L. Berryhill, furnished a portion of the lumber which was used in the construction of the theatre booths and improvements above described, and was aware of the fact that plaintiff had furnished work and labor in the construction of said improvements and was entitled to a lien upon the same for the value of his work and labor. But plaintiff states that defendants Evans R. Darlington, J. G-. Berryhill and S. L. Berryhill, disregarding his right and interest in the said improvements after they were erected and before plaintiff had established his lien against the same, did unlawfully cause the same to be taken apart and removed, taking said lumber into their possession, and thus entirely destroying the buildings upon which plaintiff had a right of lien as aforesaid. Plaintiff further states that said improvements were reasonably worth the sum of $1,000, and that as plaintiff was the only person who established his right of lien against said improyements, the same were ample security for his claim, and but for the wrongful act of the defendants would be ample to satisfy his demand' in full. But plaintiff states that by defendants’ action in destroying said property he had been deprived of his entire security and damages to the full extent of his demand against said property, to-wit: $499.35.
“Wherefore plaintiff prays judgment against defendants for said sum of $499.35 and his costs.”
Defendants James G-. and S. L. Berryhill, not being found, the suit was dismissed as to them and trial proceeded against the remaining defendant Darlington, from judgment in whose favor before the magistrate, plaintiff appealed to the circuit court, where on retrial to a jury, a verdict for $499.35 was found, from judgment on which defendant appealed.
At the trial in the circuit court, defendant, by his counsel, made oral denial of all statements of plaintiff’s petition, making no written answer, and claiming that the statement showed no cause of action against him at
The verdict was for the right party; no error has been revealed justifying reversal, and the judgment is accordingly affirmed.