67 Mo. App. 408 | Mo. Ct. App. | 1896
The defendants, Theodore, David, and William Nicholson, had the contract for building a residence on a lot belonging to Phoebe Q-. Stevens, the wife of Charles N. Stevens, both of whom are defend
The theory of plaintiffs is that in the purchase of the lot, and in contracting for building the house, Stevens acted as the agent of his wife. The plaintiff McDonnell, who testified as a witness, was asked by his counsel, to detail certain conversations between him and Stevens, in reference to the work Objection was made on the ground that no evidence had been offered of Stevens’ alleged agency. The objection was overruled, and Mrs. Stevens excepted. Previous to the question being asked, McDonnell had stated that, prior to the conversations alluded to and after the trouble had arisen with the original contractors, Mrs. Stevens, in talking to him said: “They (meaning herself and husband), were between the devil and the deep sea, in so far as the architect and builders were concerned
Against the objections of the defendants the plaintiffs read in evidence the notice of the claim. The ground of the objection likewise was that there had been no proof of the alleged agency of Stevens. This objection has been sufficiently answered, and we will, therefore, overrule the assignment.
Objections were made by the defendants to the lien paper, because it failed to state the reasonable value of the materials or that they went into the building. It is necessary to aver and prove these facts when it comes to the enforcement of the lien, but we know
A witness, who worked as a carpenter on the building under the Nicholsons, was asked whether Mrs. Stevens had at any time “given him any directions” with respect-to the building. He was required by the court to answer the question categorically. He answered “yes,” to which the defendants excepted on the ground that the witness only stated a conclusion. Upon further examination the witness gave the facts on which he based the answer. He stated that, during the progress of the work on the house, Mrs. Stevens ordered “a door in the pantry to be changed, and an extra door put under the front stairs, and also a door under the front stairs platform.” It iá evident that there is no merit in the assignment, and it will likewise be overruled.
At the instance of the plaintiffs the court instructed the jury as follows:
“The court instructs the jury that the only issue for them to consider is whether plaintiffs are entitled to amechanic’slienfortheirdemandagainst defendants, Nicholson Brothers, upon and against the house and parcel of ground which has been described in this case.
“If from the evidence the jury believe that defendant, Phoebe Gr. Stevens, by and through her husband, acting at her instance, or with her consent and approval, as her agent and for her benefit, made a contract with said defendants Nicholson, to build the house upon the lot referred to in the evidence; that thereafter said Nicholson Brothers contracted with plaintiffs to furnish the materials and labor for plastering said house; that plaintiffs furnished the work and*414 materials for plastering said house under contract with the Nicholsons, that within four months after plaintiff’s demand accrued against Nicholsons for said plastering, plaintiffs filed in the clerk’s office of this court the lien claim which has been read in evidence, plaintiffs having also first given said Phoebe Gh Stevens the notice in writing of plaintiffs’ intention to file said lien; that said notice was given said Phoebe Gr. Stevens at least ten days before said lien was filed; that both said notice and lien claim contained a true description of said property or so near as to identify same, and that said lien claim also contained a just and true account of the demand due plaintiff after all just credits had been given thereon, and that plaintiffs filed a notice in the office of the clerk of this court, of the court before whom and when this suit would be brought, and this suit was brought, as named in said notice, within ninety days after filing the lien, then the plaintiffs are entitled to a verdict for a mechanic’s lien against said property for such amount, and interest thereon, as from the evidence the jury believes to be now due plaintiffs, for and on account of the reasonable value of the material and work used by plaintiffs in plastering said house, not to exceed the sum of $382, with interest from June 13,1895, to this date at the rate of six per cent per annum.”
The first objection to this instruction is that it was error to submit to the jury the abstract question of the agency of Stevens; that if, in the opinion of the court, there was substantial evidence to prove the agency, the proper direction would have been for the court to state in the instruction what facts in evidence would constitute the alleged agency, and, if the jury found these facts to be true, then that issue should be found for plaintiffs. This contention seems to be supported in the recent case of Sheehan v. Hall, 130 Mo. 260, which is contrary to the ruling of this court in the case of
The further objection is made that the meaning of the word “accrued” should have been explained to the jury. We think that the word has a popular meaning about which the jurors could not have been in error, if they were men of good understanding, which must be presumed, as the statute requires men of good intelligence to be selected for the discharge of such a duty. Hnder the authority of Holland v. McCarthy, 24 Mo. App. 112, this point will also be ruled against the defendants.
There are several other minor objections to the instruction, which we do not particularly notice or specify, as to do so would not lead to a different result. Hence, all objections made to the instruction are overruled.
It is claimed that under the evidence the circuit court had no jurisdiction of the subject-matter of the action, for the reason that it was not shown that the action was commenced before the justice on the day named in the notice of the suit. The notice stated that the action would be commenced before Justice Sheehan on the thirteenth day of June. The proof (as shown by the transcript of the justice) was that the petition was filed on that day and a summons “issued” to the constable. The return of the constable shows that the summons was served on the fourteenth of June, but he failed to note on the summons the date of its receipt by him. The contention now is that it was absolutely essential that the suit should have been commenced on the day
Again, it is urged that the circuit court acquired no jurisdiction of the cause for the reason that the statement filed before the justice fails to state “on what date and before which justice the suit was to be brought.” The averment is “and (plaintiffs) also filed on the same day, the twelfth day of June, 1895, in the office of the clerk of the circuit court of the city of St. Louis, a notice stating the date when, and the justice before whom, this action is instituted for the enforcement of said lien.” Under the authority of Schroeder v. Mueller, 33 Mo. App. 28, this point must likewise be ruled against the defendants.
Another ground of nonsuit is that there was no sub
There was a judgment for costs in the circuit court on the appeal bond. It is insisted that this was unauthorized as there was no breach of the bond. The conditions of the bond were to wit: “Now, _ if on appeal the judgment of the justice in establishing a lien against said property be affirmed, or if on a trial anew in the appellate court judgment shall be given against the appellants or against said property and appellants shall satisfy such judgment, or if this appeal shall be dismissed and they shall pay the judgment of the justice, then this recognizance shall be void.”
The statute for the enforcement of mechanics’ liens before a justice of the peace provides for an appeal “in the manner and with the effect as in other cases.” The statute having failed to provide for a special appeal bond, the ordinary appeal bond ody can be given. That some of the conditions of such a bond are not applicable where the landowner only appeals is plain, for
There are other questions presented by the briefs. Their discussion would not be profitable, as we consider them without merit. The judgm ent of the circuit court will, therefore, be affirmed.