Hydraulic Press Brick Co. v. McTaggart

76 Mo. App. 347 | Mo. Ct. App. | 1898

Bond, J.

Plaintiff established a mechanics’' lien for $1,489.99 against the property of defendant Smith, and recovered a personal judgment for said sum against the subcontractors of the brick work performed on the building erected on said property. The owner duly appealed to this court.

The first error assigned is the alleged insufficiency of the proof of notice required to be given by a materialman in order to avail himself of the benefit of the mechanics’ lien law. R. S. 1889, sec. 6723. It is claimed that the notice of the lien laws claimed is defective in failing to recite in so many words “from whom the same is due.” The fact that, the notice in question was received in evidence without objection, does not give it any probative force which it would not have possessed if it has been received against objection.

Hence, if it labors under an intrinsic infirmity as to the statutory requirements of such notices, appellant is still in a position to insist that the record shows an essential omission in the steps necessary to fix a lien upon his property. An examination of the language of the notice of claim shows that it specifies the amount asserted to be due plaintiff; alleges that it was the price of certain bricks furnished the contractors and subcontractors, giving their names, which were used in the construction of appellant’s building; that said amount is a valid claim against the building, and a lien therefor will be enforced by suit. These statements necessarily imply that the amount claimed by plaintiff is due it from the subcontractors. No other conclusion can be reached without doing violence to the natural meaning of the terms employed. In the-first place the statement that the amount for which the claim is made is lienable against the building, necessarily involves the statement that it is. a subsisting debt against the buyer of the material. In the next place, the notice alleges that the material was furnished to both the contractors and the subcontractors. Of course, this assertion of a claim against two debtors is likewise in law and reason an assertion that it is-due from each of them. In other words, that it is due from the subcontractors, as weil as from the contractors. According to the facts in this case the subcontractors were personally indebted to plaintiff, and a recital of that fact in the notice was all required to be done by the statute. It having been shown that the notice sufficiently stated the correct debtor of the plaintiff, it certainly was not vitiated because it also claimed that some one else was liable for the debt. Bambrick v.The Webster Groves Pres. Ch. Ass’n, 53 Mo. App. loc. cit. 240. The conclusion must be that the notice in this case substantially complied with the terms and object of the statute, which was designed to warn the owner of the existence of a claim against his property by reason of the failure of the parties primarily liable to pay the same. The point under review is therefore ruled against appellant.

The second assignment- of error is that plaintiff failed to show a contraction al relation between the owner and the original contractors who sublet the-brick work to the party with whom plaintiff dealt. This point need not be discussed, since the record shows that the owner admitted the making of the contract with the general contractors.

Account The third assignment of error is that plaintiff did not file a just and true account, in that it failed to give credit for $34.90, which it is fclaimed should have been allowed. In proceedings like the present it is incumbent on the lienor to file “a just and true account of the demand due him.” This is the clear mandate of the statute, and unless obeyed no lien can ** be adjusted. R. S. 1889, sec. 6709. It was not, however, the object of the statute to create a Procrustean rule of literal exactitude in the filing of lien accounts. If such were its purpose a claim, otherwise valid and enforcible under the mechanics’ lien law, would suffer defeat from errors of computation, inadvertence or mistake, or a mere preparation of the account, irrespective of the good faith of the lienor. Such an absurd consequence is not in the purview of the statute, which is highly remedial and favored by the law.

Rebate defined. The true purpose of the statute is to exact a substantial compliance with its requirements, and this is had, whenever it appears that the account filed has not been knowingly, intentionally or fraudulently falsified. If it is honestly stated, errors arising from mere mistake will not prevent the obtension of a lien for what is justly due. Ittner v. Hughes, 133 Mo. 679; Uthoff v. Glerhard, 42 Mo. App. 256. In the case at bar the correctness of the items of charge in the lien account is supported by the sale slip given to plaintiff’s salesman by the subcontractors at the time they purchased the material. Their only objection to the lien account is that it does not credit to them $34.90 under a memorandum delivered to them by plaintiff’s salesman to the effect that a “rebate” of $1 and $2 per thousand would be given on the brick sold. As there is not a particle of evidence in the record that plaintiff’s managing officers had any knowledge or information of this proposed abatement, other than the constructive notice which is» legally imputable from the knowledge possessed by their salesman, it is difficult to see how it could be said that they intentionally omitted a credit on the account, even if the memorandum as to the “rebate” afforded the subcontractors an absolute right of deduction from the agreed price. But we do not concede that the term “rebate” afforded any such right. The significance of the word does not warrant such a conclusion. A debtor is not entitled to a promised rebate until he has paid or tendered the price of the thing sold. This is the true import of the term “rebate” arising both from the . . . . . - sense given to it m the ordinary use, and in the definitions of the lexicographers. See Bouvier Law Dictionary; Worcester; Century. We therefore hold that the account filed by plaintiff was not rendered incorrect by the omission of a credit for the sum which would have been due under the rebate agreement if the subcontractors had paid or proffered the agreed price of the material.

It is insisted that there is some error in the admission of oral testimony tending to show that the rebate was only to be allowed in consideration of prompt payment. As this evidence was withdrawn and could not have effected the result since the judgment allowed full credit for the amount of the rebate, it is unnecessary to pass on its admissibility.

Finding no error in the judgment of which appellant can complain, it will be affirmed.

All concur.