Mahan v. Brinnell

| Mo. Ct. App. | Apr 15, 1902

GOODE, J.

1. One assignment of error is that it was not shown that an itemized account of the labor and material was filed with the justice, who was, therefore, without jurisdiction or authority to issue process. But the statement before the justice contained the items as particularly specified as they are in the lien statement atid that dispensed with the filing of a separate account, which could only have been a duplicate of the items in the statement.

2. As the instructions passed on by- the circuit court were lost, no point is made in respe'ct to them and all that remains to be considered are the errors claimed to have been •committed in the admission of evidence, the first of which relates to the lien account. The ground of this assignment, is that the account was insufficiently itemized and should have been excluded. An inspection of it shows that after setting out the contract with Brinnell, the description of the property, and other formal but necessary matters, the lien statement gives the facts about the plumbing work as follows:

“Also O. J. Brinnell is further indebted to M. E. Mahan in the sum of two hundred and eighty-five dollars, the contract price for all material and work used in the plumbing of said above described building. The cost of the material used in the plumbing of said building was $216.68, and the cost of the work and labor in placing the material in said building was and is $69.52, the total amount of contract price being $285. That said plumbing and work was all done-between the fifteenth day of September, 1899, and the fifteenth day of January, 1900. The material used in said building consisted of the kinds of material specified in the specifications for said building as follows: Three water-closet outfits, three marble slab washbasins, one white enamel sink and also all faucets, drainpipes and all other necessary pipes and fixtures necessary to comply with said specifications, the contract price for doing the work and furnishing all the material being $285, of which there had been paid on the same in cash $129.44, and by note in Commercial Bank $86.24. Total credits $215.68. Balance due on said contract $69.32.

“That all of the above work and materials were used in said building. That the total amount now due said M. E. Mahan on account of setting up the hot-water heater in said' building and all extra work thereon and on account of the plumbing contract as aforesaid is $125.62.”

Mahan did his work under a contract with Brinnell, the Original contractor, for a round sum for the entire plumbing job, and the law is not altogether clear as to what particularity of statement in the lien account the owner' of the property may demand in such cases. When the lien is filed' by the-original contractor, who has specially agreed with the owner to do the job for a certain price, it seems a detailed statement of the items of material and labor that entered into the improvement is not required; presumably because the owner knew what he bargained for when he agreed on a price and does not need to be apprised of the basis of the charge by an enumeration of items. Busso v. Fette, 55 Mo. App. (St. L.) 453; Abbott v. Hood, 60 Mo. App. (St. L.) 196.

In Hilliker v. Francisco, 65 Mo. 598" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/hilliker-v-francisco-8005729?utm_source=webapp" opinion_id="8005729">65 Mo. 598, this rule was applied where the lien was filed by a subcontractor and the account was more general than in the case in hand. On the authority of that case, which is of long standing and has been often cited approvingly, the statement filed by the plaintiff must be ruled sufficient.

3. The appellant admitted every allegation made by the respondent in relation to the plumbing, in its answer filed in the justice’s court, and joined issue on nothing but the credits, claiming it should have certain credits not allowed by the plaintiff and asserting that plaintiff was entitled to a balance of only sixty-five dollars and eighty-two cents on the plumbing job. In the circuit court, Mahan took a nonsuit as to the balance claimed for the heating apparatus; whereupon the bank withdrew its answer to the count of the petition declaring on the contract for the plumbing and now insists that plaintiff was thereby put to the proof of all the allegations of.said count and that the abandoned answer was erroneously received in evidence as an admission against interest. The answer was shown to have been filed by the bank’s regularly employed attorney, after several conversations with the cashier of the bank, who undertook to inform him of the facts arid was competent evidence in favor of the plaintiff. Walser v. Wear, 141 Mo. 443" court="Mo." date_filed="1897-11-23" href="https://app.midpage.ai/document/walser-v-wear-8012657?utm_source=webapp" opinion_id="8012657">141 Mo. 443.

The judgment is affirmed.

Bland, P. J., and Barclay, J., concur.