192 Mo. App. 489 | Mo. Ct. App. | 1916
This is a snit upon a material-man’s lien for materials furnished by plaintiffs to Sellers, Rickets & Company, original contractors with defendant, Jacob 0. Bloch, for the erection of the latter’s residence. Originally, the claim w.as for $685 but, pending the suit, the contracting firm failed, and its assets were distributed among creditors, plaintiff receiving $123.30 on the claim herein sued on, leaving a balance due plaintiff of $561.75'. All the members of said firm except Sellers went into voluntary bankruptcy and were discharged from their debts; whereupon this suit was dismissed as to all except Sellers, as the only remaining original contractor, and Bloch as owner of the property. The latter raised the only defense made in the case. That was that the lien claim was not filed within four months of the accruing of plaintiff’s account as required by section 8217, Revised Statutes, 1909. The case was tried by jury resulting in a general judgment against Sellers in plaintiff’s favor for the balance due, but, on the question of lien, the judgment was in favor of defendant, Bloch. Thereupon plaintiff appealed.
The erection of the dwelling was commenced in July, 1912. Both Shaw, the foreman of Sellers, Rickets & Company, and defendant Bloch testified that the house was completed in October, 1912, and the owner moved into and occupied it on the 18th of that month. The last item on plaintiff’s account for materials furnished and used in the house, at the time the owner accepted and moved into it, was furnished on September 21, 1912. The lien claim was rfot filed until July 10, 1913. This, of course, was more than four
The contract price for building the house was $5410, and on the 30th of November, 1912, Mr. Bloch made the last payment thereon amounting to $950 which, with what he had theretofore paid, amounted to more than the contract price.
As stated, the evidence is that the house was finished and made complete in every respect in October, 1912, and the owner moved into it October 18th and accepted it as a completed house and shortly thereafter paid for it as such. Everything about the house was all right so far as the owner could see. Shortly after Christmas, however, an outside door commenced to crack. The owner, sometime in January, 1913, mentioned the fact to Sellers and said he thought he ought to have a new door to replace it. Sellers laughingly put him off, and Bloch, knowing that the firm was in financial straits, did not expect him to do anything in regard thereto. However, in April, 1913, about six months after Bloch had accepted and moved into the house, Sellers, Rickets & Company replaced the cracked door with a new one. Bloch says he was surprised to get it. It seems that Sellers, Ricketts & Company wrote plaintiff that the door they had theretofore furnished had proved defective, and asked plaintiff to supply another one in its place. Thereafter plaintiff put another door through the drying process necessary to prevent it from warping, and sent it to take the place of the one it previously furnished. No extra charge was made for this. The new dour was merely substituted for the old one. The old d,oor was an item
We are of the opinion that, under the circumstances, the lien claim was not filed within the statutory time; that the replacing of the defective door by the new one in March, 1913, did not have the effect of extending the account so as to enable plaintiffs to hold a lien on defendant Bloch’s property filed within four months of that date, but not filed within four months of the time the account terminated.
The evidence shows that the materials were furnished, the house was finished, accepted and paid for, and plaintiff’s account was complete and had no further continuity as a business transaction after September 21, 1912. After the termination of an account, the supplying of new articles, without charge, to replace articles furnished under the account but which have proved to be defective, does not have the effect of extending the time for filing the lien. [Homeopathic Assn. v. Harrison, 120 Pa. St. 28; Harrison v. Homeoapathic Assn., 134 Pa. St. 558.]
The case is not like that of Fire Extinguisher Co. v. Farmer’s Elevator Co., 165 Mo. 171, for there the work had not been completed, as certain requirements of the contract had been overlooked, and the owner of the property, the Elevator Company, had not approved of nor accepted the work and was not precluded “from demanding further work of construction called for in the contract.” [See p. 183.] In the case at bar the evidence shows that the contract had been completed and accepted as complete, and there was in fact no evidence to the contrary. The question
Plaintiff complains of the court’s refusal of its instructions 1, 2 and 6. But both instructions 1 and 2 are, in effect, peremptory instructions to find for plaintiff. No. 1 tells the jury that if the last door was furnished and delivered on or after March 12, 1913, or within four months prior to July 10, 1913, then the finding should be for plaintiff. No. 2 said if the lien claim was filed within four months from the date of
In lieu of these refused instructions the court on its own motion gave three instructions for plaintiff submitting the question whether or not the last door was furnished by plaintiff and required by defendant as a
Plaintiff objected to the admission of evidence showing that the owner paid for the house at the time it was finished. Of course the mere fact that the owner had paid the contract price would b-e no defense against a lien for material, and the trial court ruled at the time of the admission of the testimony that it could not be so considered but that it was admitted solely as a circumstance tending to show that the owner regarded the house as finished and the work completed and the house unqualifiedly accepted. In addition.to this, the court instructed the jury that the fact that the owner had paid the contract price constituted no defense to the lien, but was only admitted as a circumstance bearing upon the question whether the contract had been fully completed and the house accepted. Under these facts we do not see how this evi
We think the judgment should he affirmed.