106 Mo. App. 594 | Mo. Ct. App. | 1904
This is an action to enforce a mechanic’s lien for material furnished. There was a trial and judgment against Hoyt, the alleged original contractor, and Mrs. A. E. Jones, the owner of the realty, who appealed. The grounds relied on for reversal are, that the evidence does not show that she contracted with Hoyt, the builder; and that the lien ac
The evidence showed that plaintiff furnished a. part of a carload of sand to Hoyt who plastered the building in question but it did not appear what the quality was. Hoyt hauled the sand from plaintiff’s premises during his absence. His contract was to furnish four wagonloads but Hoyt took much more.
The plaintiff relies upon the following facts to show that a contract was made between Mrs. Jones and Hoyt for the work, which was repairing a hotel, viz.:
The lien verified by plaintiff’s-affidavit and a certain statement of Mr. Pope — Mrs. Jones’ attorney — on the trial. When the lien was offered, he said: “I object to the lien being introduced in evidence because it does not comply with the requirements of section 4207 of the Revised Statutes of 1899 in regard thereto, in this that there is no itemized account of the articles charged for, and that there is no statement of the quality of the articles furnished; nor of the price charged for the materials claimed to have been furnished to the original contractor in this case.”
It would not be fair to say that the language when liberally construed and taken in connection with the object intended was an admission that there was an original contractor. The incidental remark of an attorney when of an equivocal character as is this should not be so strained in its meaning as to prejudice his client. No one was authorized to take it as. an admission because it was not stated to be such. Admissions during the trial are usually stated with explicitness and for the purpose of dispensing with proof of the fact admitted. No such purpose is apparent in this instance.
The respondent is also in error in insisting that the lien paper introduced is evidence of a contract. It did not prove itself. It has never been so held.
It follows therefore that there was no evidence that Hoyt had a contract with Mrs. Jones; for which rea
The account in this case was sufficient. It' was all of tbe same kind of raw material and furnished at one time.
Reversed and remanded.
