23 Mo. App. 546 | Mo. Ct. App. | 1886
delivered the opinion of the court.
The plaintiff, as a sub-contractor for plastering, under the contract made between the defendant, Barnes & Morrison Building Co., as principal contractor, and the defendants, Fairman Rogers and Isaiah Y. Williamson, as owners, for repairs and alterations done on the St. James Hotel, in the city of St. Louis, sues for three Tiundred and fifty dollars, the value of his work, and a mechanic’s lien on the property. The verdict and the judgment were for the plaintiff.
The account filed with the lien is in the following terms:
“1882.
“Dec. 29th. To furnishing material and doing the work of plastering the south or party wall of the St. James Hotel, including patching of the ends of partitions and ceilings, and joining same in basement, 1st, 2nd, 3rd, 4th and 5th stories, viz: 757 14-100 yards of plastering at 43 8-10 cents.............$331.52
52 8-10 linear feet stucco cornice at 35 cents...................... 18.48
$350.00”
The defendants object that this account is fatallydefective, and insufficient to sustain the lien. One point of objection is that it includes work done in the basement ; whereas the testimony shows that such work wa,s not provided for, either in the principal contract, or in
A similar objection is made to the item of stucco cornice. This item is separable from the others, on the
The defendant owners are non-residents. The plaintiff’s notice of lien was served on Charles T. Farrar and James L. Blair, as agents of the owners. Farrar was a real estate agent, having in charge the hotel property f or the purpose of collecting rents and paying taxes and insurance. The character of Blair’s agency is shown in the following extracts from the testimony.
1. Examination of Mr. Blair:
Q. “Bid you examine any of the bills that were-paid before they were paid? A. I did. I think I told you just now that was my business.”
Q. “That it was your business to examine the bills? A. Yes, sir.”
*551 Q. “Did you examine the bills of Barnes & Morrison ? A. As I told you awhile ago, the bills were presented to me through Mr. McElfatriek, the superyising architect, from time to time—-amounts, not bills. The contract was drawn so that payments should be made at certain times. Upon McElfatriek certifying that the time had arrived when such payments were due, each certificate was sent to me, as the attorney of these gentlemen, and I examined it and compared it with the terms of the contract.”
Q. “Who were yon the attorney of? A. Williamson and Rogers.”
Q. “When did that kind of employment begin? when-did you begin to supervise and look over the certificates issued by the architect ? did that kind of employment begin at the institution of the improvement in the hotel? A. Yes, sir; I drew the contract.”
Q. “Before any of the work was done ? A. Yes, sir.”
Q. “And before any payments were made or certified by the architect, you looked over the matter and approved it? A. Yes, sir; if it was correct-I approved it.”
Q. “ The understanding was that you were to approve the bills before_they were paid, was it not ? A. Yes, sir.”
Q. “Any certificate issued by the architect for work done upon that building necessarily passed through your hands before it was paid ? A. Yes, sir.”
2. Examination of Mr. McElfatriek, the architect and superintendent:
Q. “Did Mr. Blair represent to yon that he was the attorney to see whether the building was completed or not? A. I think he did, sir.”
Q. By Mr. Blair. “Was it not my duty, as far as I was concerned, to find how much money the contractors -were entitled to under the contract? A. Yes, sir.”
*552 Q. “ That was all I had to do in the matter, was it not? A. Yes, sir; that is just what I tried to state.'’
Without undertaking to determine the sufficiency of Mr. Farrar’s agency to validate the service of the notice upon him, let us inquire into the effect of the service upon Mr. Blair. The general rule is, that notice given to an agent while his agency exists, and coming within the scope of his authority, is notice to the principal. Hayward v. Ins. Co., 52 Mo. 181. Vories J., elucidates this with the remark that, “Generally it is sufficient to notify an agent whose proper business is to attend to the matters in reference to which the notice is given.” He also quotes from Story on Agency, section 140 : “ Upon a similar ground notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with the subject matter of his agency ; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal.” Now, the precise matter here, with reference to which the notice of the plaintiff’s claim was given, was his demand of payment for work - done under the contract. The question submitted by it was, whether the claim should be paid, “or resisted ? In other words, whether the demand should be legally contested, or should be approved and paid without a contest? This question was closely connected, or rather, identified with the subject matter of Mr. Blair’s agency ; since he was to “ approve the bills before they were paid,” and was to “ find how much money the contractors were entitled to under the contract.” It may be objected that, according to the testimony, Mr. Blair’s agency was confined to the approval or disapproval of bills certified by McElfatrick and Son, the superintendents. True, his proceedings were usually limited to such certified bills, but his own statements show that his authority comprehended all bills for work done under the contract; and, as to this, there was no lack of privity between the
Counsel for the defendants maintain with much ability their proposition, that the preponderance of evidence in this record against the verdict and the instructions given, is such as to raise a presumption of gross prejudice or wilful disregard of the testimony, on the part of the jury, and so to call upon us for a reversal of the judgment on that ground alone. The point of this proposition lies in the testimony about the date upon which the plaintiff’s last work was done. The lien was filed on April 27, 1883. So that, in order to a compliance with the statutory limit, the last work must have been done on or after December 27, 1882. Six several witnesses testified to facts which were inconsistent
The defendants contend that the petition omits,, contrary to (Rev. Stat., sect. 3179) certain statements of fact which were necessary for the securing of a lien. The petition states the original contract, and that the
We find in this record no good reason for disturbing* the conclusions reached in the circuit court, and the judgment is, therefore, affirmed.