Kneisley Lumber Co. v. Edward B. Stoddard Co.

113 Mo. App. 306 | Mo. Ct. App. | 1905

GOODE, J.

(after stating the facts). — 1. It is apparent that the learned circuit judge erred in holding there could he no personal judgment against the defend- ' ant Hayward. He was a member of the firm of Edward B. Stoddard Company and was one of the original debtors for the material in controversy. As he was personally served with process in the case, plaintiffs were entitled to judgment against him. The court below was under the impression that Hayward, as well as Stoddard, had been brought into court by constructive service and, therefore, was not amenable to a personal judgment. Counsel for the defendants say the court’s attention was not called to this erroneous ruling in the motion for a new trial; but by inspecting the grounds of that motion it will be seen that it was called to the court’s attention in a sufficiently definite way. Besides, the declaration of law given by the court explicitly declared there was no service on Stoddard and Hayward in this State to support a personal judgment. That declaration was erroneous as regards Hayward, and the motion for new trial complained of the declaration.

2. The notice of an intention to file a lien was served only on Corl, one of the owners of the premises, and not on his co-owner, Murray. .For this reason the contention is preferred that the lien must fail, as the law requires subcontractors to give notice to all the owners of premises of an intention to file a lien. There may be a question as to whether service on Corl would support a judgment enforcing a lien against Murray’s interest in the premises,' although the two were partners and in some sense agents for each other. This question we waive, as it does not call for present decision. We have no doubt that, notice having been served on Corl, the lien can be enforced against his undivided interest.

3. The important and difficult question is whether the lien statement was sufficiently full and definite to satisfy the law. The lower court held it inadequately stated the items and the dates when'they were furnished. We think the description of the items of material furnished meets the requirement of the law. The heading of the first column of each page showed the different items following were lumber; because the word “Lumber” stood at the head of the column. Underneath were numerical, and abbreviated verbal, designations of the different kinds of lumber furnished. Such abbreviations are understood in trade and employed constantly in making out bills and stating accounts. It was competent to explain by oral testimony the meaning of the figures and abbreviations. The figures, abbreviated words and initial letters, such as “S. & E.; Com. Fig; No. 1 Rgh. Star dp sdg,” doubtless can be shown to have a well-known meaning, and to be descriptive of the kinds and sizes of the different lots of lumber furnished. Sometimes the material was named; for instance, “Ruberoid Roofing.” The question of the sufficiency of such designations of material in a lien account was passed on by our Supreme Court in Henry v. Plitt, 84 Mo. 237, 241. The court said the heading of the account showed that the figures used to designate the items referred to lumber, and as figures instead of words are in common use in trade to indicate articles sold, the statement was good. The same proposition was passed on in Schulenburg v. Werner, 6 Mo. App. 292; Holland v. Cunliff, 96 Mo. App. 67, 69 S. W. 737. In those cases the accounts were no more full and definite in describing the different lots of material than is the present account. We, therefore, deem it not an open question that this one sufficiently describes the kinds of material furnished to be good under the mechanic’s lien statutes.

4. The next point to be considered is the effect of the absence of dates. As to the time the extras were furnished, the months and days of the month are indicated by numbers, as is customary in commercial affairs. These numerical designations could have been explained by testimony and the time they indicated defined. But the difficulty is that no- year is given in the bill of extras and the part of the account containing the lumber furnished under the original estimate has no notation of dates either in words or figures. The account itself may be assisted by the affidavit attached to it. [Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 56.] But the affidavit contains nothing to throw light on when the material was furnished except the statement that the demand accrued within four months prior to the filing of the lien. Stating the months and days, but not the year, leaves the time when the material was furnished, uncertain. Therefore, the lien paper shows no more than that the demand accrued within four months prior to the filing of the claim in the office of the circuit clerk. The last extra was furnished June 8, as is shown by the notation “6-8.” The last credit of $500 was entered June 10 “ (6-10).” The question for decision is as to whether the statement that the demand accrued within four months, without any showing as to when the first material was furnished, or the extreme dates between which all the material was furnished, or any dates when the different items were furnished, makes a good lien account. In answering this question the first thing to ascertain is what our statutes say on the subject, if anything. The statutes require every original contractor within six months, and every journeyman within sixty days, and every other person seeking a lien within four months, after his indebtedness accrues, to file in the office of the clerk of the circuit court of the proper county a just and true account of the demand due him, after all just credits have been given, the same to be verified by oath. [R. S. 1899, sec. 4207.] The railroad lien law expressly requires dates to be given (R. S. 1899, chap. 47, art. 4). The other lien statutes say nothing about dates and their language exacts nothing in regard to time except that the lien must be filed within a certain period after the indebtedness accrues. In the case of a subcontractor this period is four months. Now, as the plaintiffs, who were subcontractors, averred in the lien paper that their demand accrued within four months of the filing, they complied with the language of the statutes. If any more in regard to the dates or time is necessary, it is on account of the implication arising from the use of the expression “a just and true account.” Are the dates of the different items of an account, or of the first and last items, essential ingredients of a just and true account, according to the meaning of that term in the mechanics’ lien law? By “just and true” is meant an account which states truth and not falsehood, and demands no more than, in right and justice, the claimant ought to have. The question comes down then to the legal meaning of the word “accountand if we turn to the books we find that the word has no precise and inflexible meaning in law, but is one of diverse significations. [Morrisett v. Wood, 128 Ala. 505.] The primary idea of an account is a statement of debits and credits between parties who have been doing business with each other. [Whitewell v. Willard, 42 Mass. 216; Nelson v. Possey Co., 105 Ind. 287; Purvis v. Kroner, 18 Ore. 414; Turgeon v. Cote, 88 Me. 108.] An account has been defined as a written statement of pecuniary transactions; a detailed statement of demands in the nature of debit and credit between parties, arising out of contract or some fiduciary relation. [1 Am. & Eng. Ency. Law (2 Ed.), p. 434.] Another text-book says an account is no more than a liqt of items, whether debits or credits; an exhibit of charges and credits growing out of mutual dealings, presented in such form as to facilitate the determination of the balance due by simple, calculation; that the term has no clearly defined legal meaning, but the primary idea is that of debit and credit. [1 Cyc. 362.] The conclusion from these definitions is that giving the dates of various transactions is not indispensable to an account; though dates, we know, are usually affixed in stating a bill of debits and credits. The conclusion is to be derived, also, that the word “account” is not a word of precise technical import, requiring the presumption that the Legislature in using it, meant to call for a statement of particulars containing essential and well-known parts. There are technical words which convey a meaning not only definite, but full and precise. For instance, if the word “deed” is used, it imports an instrument possessing certain elements, or parts, which at once occur to one of legal training. The courts of this State have had occasion to pass on the term “account” as used in the mechanics’ lien law. In McWilliams v. Allen, 45 Mo. 573, it was said there is a broad distinction between an account and the amount due; the balance due is but the result of the debit and credit sides of an account; it implies mutual dealing, without which there could be no balance; what the legislature intended was that the lien —or should exhibit his demand fully 'and thereby show the balance sought to be imposed as a lien, instead of merely stating the balance. But the Supreme Court said in Mitchell, etc., Co. v. Allison, 138 Mo. 50, that the authority of McWilliams v. Allen had been shaken in regard to the necessity of itemizing an account, by the later case of Hilliker v. Francisco, 65 Mo. 598, which went far toward authorizing a lumping charge under certain ' circumstances. In Coe v. Ritter, 86 M'o. 277, 287, it was said, incidentally, that the dates of items ought to appear in a lien account; and this ruling was taken in Curless v. Lewis, infra, as establishing the rule that dates are indispensable. That remark was made in a case wherein the question for decision was as to whether a lien for material, or a deed of trust on the premises, should have priority, and the decision depended on when the material was furnished. A lien attaches in favor of any one who furnishes material for an improvement after it is begun, and the lien enjoys priority over a subsequent incumbrance; but not over ah incumbrance earlier in point of time than the inception of the work. It is obvious that the date when an improvement is started and materials furnished for it, is vital when the controversy is concerning which has priority, a lien or an incumbrance. In Coe v. Ritter, supra, the dates when the several lots of material were supplied were stated in the lien account and, according to those dates, the deed of trust was entitled to precedence. But the right was asserted to show the dates given in the lien paper were incorrect and that part of the material was furnished earlier than they indicated. This evidence was rejected on the ground that the statutes called for a just and true account and the tenure of others interested in the premises, who had relied on the statement filed with the circuit clerk, ought not to be jeopardized by contradicting the statement. That decision did not touch the question in hand. It is difficult to see how dates can-be important when the controversy is between a proprietor of premises, who contracts in person for an improvement, and a party who supplies material for the improvement. Of course, if the material was supplied more than five years before the action was instituted, and the earlier items were not kept alive by a running account, those items would be barred by the Statute of Limitations.' That, however, would be matter of defense in a suit to enforce the lien; and the necessity of showing it on the face of the lien claim is far from obvious. [Mitchell, etc., Co. v. Allison, supra.]

As the term “account” has no precise technical meaning, when interpreting a statute in which it is used, we should adopt that one of its common meanings which will realize best the main object of the statute. Now as a statement of debits and credits may either contain dates or not, and still constitute an account, we should not require any fuller showing of dates in a lien account than the language of the lien statutes calls for, or than will aid in accomplishing the purpose of those statutes. To require more would encumber the law with a useless rule. The principal facts to be shown by a lien statement are what material or work the claimant wishes a lien for and when the indebtedness accrued. Such a showing enables the owner of the premises to ascertain whether the work or material actually went into the improvement and whether the statement was filed in the time limited. By ascertaining the truth about those matters, the owner will know that his property is or is not liable, prima facie, for the claim. So much regarding what strikes us as the sound theory of the question. Let us return to the cases.

There has been a diversity of rulings by the appellate courts of this State as to the necessity of dates to a lien account. It may be said that all the decisions hold that a date need not be affixed to every item. The real problem is as to whether the lien paper must show the extreme dates of the account — that is, the dates of the initial and the final transaction — or whether it suffices to show that the demand accrued within four months before the filing of the lien account; or whatever the period may be, depending on the character of the claimant. The decision in Curless v. Lewis, 46 Mo. App. 278, was that a just and true account meant an itemized account with dates; and that a lien paper which did not show the beginning of the account, but did show that the demand accrued within six months prior to the filing (the claim was that of an original contractor) was insufficient. The same court (Kansas City Court of Appeals) declared the same doctrine in Mitchell, etc., Co. v. Allison, 71 Mo. App. 251. The latter case was certified to the Supreme Court as in conflict with the decision of this court in Haydon v. Wulfing, 19 Mo. App. 353. In the following decisions accounts that gave the initial and the final dates of various transactions, but not the dates of the intermediate items, were held good. [Mesker v. Cutler, 51 Mo. App. 341; McDermott v. Claas, 104 Mo. 14, 23, 15 S. W. 995; Ittner v. Hughes, 133 Mo. 679, 684, 34 S. W. 1110.] The first and last dates appeared, too, in Mitchell, etc., Co. v. Allison; for though there was a long account in that case, consisting of many items to which no dates were affixed, the account closed with these words: “Delivered and used in the building above described between April 20, 1893, and July 19, 1893.” The Kansas City Court of Appeals held that those words were not enough and that the lien claim was void; but the Supreme Court took the other view. It will be perceived that as the account in hand lacks the initial date and fails to show more as to the final date when material was furnished than that the demand accrued within four months of the filing of the lien, the point in decision in the Allison case is different from the one we are called on to decide. Still, the tone of the Supreme Court’s decision favors the validity of the present lien. The opinion deals with the meaning of the word “account” and says “the account which this law contemplates is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. The account may consist of one or more items. It may be all on one side, or mutual in its showing. To be valid, however, it must disclose on its face that the demand is of a sort within the terms of the lien law. The affidavit required to verify the account may be considered along with the account itself in ascertaining the sufficiency of the latter.” The Supreme Court’s opinion pointed out that the decision of the Kansas City Court of Appeals was in conflict Avith the decisions of this court in several cases besides Haydon v. Wulfing. If the opinion had held in terms that Haydon v. Wulfing was correctly decided, we would have no difficulty with the present case. But it made no comment on the decisions of this court. In effect it overruled the decision in Curless v. Lewis, supra, which was discarded as authority by the court which decided it. In Haydon v. Wulfing, 19 Mo. App. 353, the account contained no dates except one at the top Avhieh Avas taken as the time when the account was rendered and not the time when the material was furnished; just as we take the date at the head of the account in controversy to he. The opinion of Judge Rombatjer gave attention to some of the decisions in this State on the subject and contrasted our statute, which does not require dates in a lien account, with the Pennsylvania statute, which does. After noticing the authorities the opinion said:

“In view of the foregoing, we have come to the conclusion that the account required by the statute is not necessarily invalidated as a lien because it fails to give the dates when the work was done, provided it appears from it or other parts of the lien paper filed, that it was completed, and the indebtedness accrued within the period required by the statute to entitle the contractor, or subcontractor, to a lien.”

In Cole v. Barron, 8 Mo. App. 509, the months and days of the months when the material was supplied, Avere given in the lien statement, but not the year. The opinion said that if the items were over four months old the right to a lien was gone; but that the account Avas a just and true one within the meaning of the statutes, as every object of the law Avas fulfilled. The court held the Pennsylvania cases were not in point on account of the difference between the Pennsylvania and the Missouri statutes.

In Kern v. Pfaff, 44 Mo. App. 29, the account contained no dates, but the defect was held to be supplied by the averment in the affidavit that the demand accrued within six months prior to the filing of the lien.

In Bambrick v. Assn., 53 Mo. App. 225, the account was practically like the one before us and without dates. It was adjudged sufficient on the authority of Haydon v. Wulfing, supra and Kearney v. Wurdeman, 33 Mo. App. 447. The latter case appears not to be in point, because dates Avere given in the account involved.

In Brockmeier v. Dette, 58 Mo. App. 607, the account was for 2,409 hours of carpenter work, a lump charge. It was held valid.

The foregoing decisions of this court show, beyond question, that the doctrine it upholds is that a lien account is good though no dates are given, provided the attached affidavit shows the indebtedness accrued within the requisite period before the filing of the lien claim in the office of the circuit clerk. Decisions of like tenor can be found in other states having statutes similar to our own. [Noel v. Kennealy, 37 Neb. 879; Chapman v. Brewer, 43 Neb. 890.]

In Peoples’ Lumber Co. v. Hayes, 75 Mo. App. 516, the Kansas City Court of Appeals dealt with a lien statement containing a large number of items, many of which had no dates. The court said that, following the decision of the Supreme Court in the Allison case, the lien account must be held sufficient, as the affidavit contained a 'statement that the demand accrued four months prior to the filing of the lien.

In Sanderson v. Fleming, 37 Mo. App. 595, the account had no dates and was not cured by an averment elsewhere in the lien paper that the indebtedness accrued within the time prescribed for filing the lien claim; therefore the court held that Hayden v. Wulfing did not control the decision and the lien must fail.

In the work of a leading text-writer on the subject the doctrine seems to be maintained that unless the lien statute requires dates, it is sufficient if the statement of a lien shows it was filed within the requisite time after the indebtedness accrued. [Phillips, Mechanic’s Liens (3 Ed.), sec. 359; citing Knauft v. Miller, 45 Minn. 61; Johnson v. Stout, 42 Minn. 514.]

We have no decision by the Supreme Court on the exact point involved; but incline to the view that the Allison case sanctions the previous rulings of this court, which were to the effect that a lien paper is good if the affidavit states that it was filed within the statutory period after the indebtedness accrued, though no dates are given. We must, therefore, rule that the learned circuit judge erred in excluding the lien account of the present plaintiffs.

The estoppel and counterclaim pleaded in the answer call for no attention at this stage of the case, in view of the above ruling.

The judgment is reversed and the cause remanded.

All concur.