43 Mo. App. 369 | Mo. Ct. App. | 1891
D. J. and William Dempsey entered into a contract with the plaintiffs, in which they agreed to furnish at their own expense all the materials and labor necessary for the construction of a certain building, to be erected on a lot in the city of St. Louis belonging to Louisa McFall, the wife of John McFall. In consideration of this the plaintiffs 'agreed to pay Dempsey Bros, the sum of $5,500, to be paid in certain installments, and during the progress and at certain stages of the work ; provided the contractors paid the wages of the artisans and laborers, and the bills of materialmen who might furnish material for the construction of the building. And it was further provided that, if the Dempseys should fail to pay any such claim or claims, then the pi aintiff should have authority under the contract to pay them, and charge the payments to the contractors. To secure the plaintiffs in the completion of this contract according to its terms the Dempsey Bros., as principals, and John Nolan and Luke McLaughlin, as- their sureties, entered into a bond to the plaintiffs in the penal sum of $6,000. The conditions of this bond are as follows : “ The condition of the above obligation is- such, that, whereas the said Dempsey & Bro. have, on the day of the date of these presents, executed and entered into a certain contract for the erection of certain buildings in said contract described, which contract is hereto .annexed: Now, if the said Dempsey & Bro. shall well and truly perform •and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned to be performed and fulfilled, and shall keep the said- John McFall and L. S. McFall harmless and indemnified from and against all and every claim, demand, judgment liens, "and mechanics’ liens, costs and fees of every description incurred in suits or otherwise, that may be had "against them, or against the building to be erected under said contract, and shall repay the said John McFall and L. S. McFall all sums of money which they,
The present action is brought against all the obligors in the bond, and among other alleged breaches plaintiffs claimed that, in the construction of the building, the Huttig Sash & Door Company, had furnished the contractors with certain materials which had been used in the construction of the building ; that the contractors had failed to pay this claim ; that a mechanics’ lien therefor had been filed in the proper office; that an action had been brought thereon before a justice of the peace, in which the contractors and the plaintiffs were made parties ; that judgment for the amount was rendered against the contractors; that the amount of this judgment was declared a lien upon the house and lot of Louisa McFall; and that afterwards, on the seventeenth day of July, 1887, the plaintiffs paid and satisfied the amount of the judgment. Four other like breaches were declared on, in one of which the judgment was rendered before a justice of the peace, and in the others the suits for the enforcement of the mechanics’ lien were begun, and the judgments thereon rendered in the circuit court. Other breaches of the bond were alleged, but it will not be necessary to notice them. The contractors filed an answer in which they denied the plaintiffs’ cause of action, and set up certain alleged counter claims for extra work for which they claimed" a judgment. Nolan and McLaughlin, the sureties, after, a general denial, set up in their answer that the building
To sustain the averments touching the payments of the four judgments against the property, the plaintiffs read in evidence the mechanics’ liens, the notices of the liens, the pleadings in each case,- the' writs of summons and the judgments' of the courts thereon. It appeared in each case that the plaintiffs and the Dempseys were in court and made defense to the various suits. The defendants complain of the introduction of this evidence, and urge its incompetency and insufficiency to establish valid judgments as against them owing to various and divers irregularities in the proceedings leading up to the judgments. This assignment of error is predicated upon the legal assumption, that the judgments in those cases are not'even prima facie evidence •against the defendants in this'action. Upon what principle this can be maintained as to the Dempseys, we are at a loss to know or even conjecture. They were personally served with process ; they appeared and defended the suits as they were in duty bound to do (R. S. 1889, sec. 6725); personal judgments in each case were rendered against them ; the courts in each case found that the materials had been used in the-construction of the plaintiffs’ building, and liens for the
The court found that the plaintiffs had paid the contractors by checks the sum of $3,800. Concerning this there is no dispute. The plaintiffs claimed that, in addition to this amount, they paid to subcontractors, on orders from the contractors, the sum of $1,047.50. The plaintiffs had in their possession, and produced at the trial, the various orders, which were identified by one of the contractors as genuine. There were receipts or acknowledgments of payment attached to each order, but the signatures of the payees were not established by proof. Mrs. McFall testified in a general way that she had paid various orders in favor of subcontractors, which were then in the hands of her attorney, but she was not asked to identify the particular orders, or to testify specifically as to their payment. It is now contended by the defendants that this evidence was insufficient to establish the payment of the orders, and that the credit given the plaintiffs therefor cannot be sustained. We will have to rule this assignment against the defendants. While the testimony as to the payment of the orders might have been more explicit .and satisfactory, yet there is no failure of proof on this point. The possession of the orders by the plaintiffs is presumptive evidence of their payment.,
The court, in making up its judgment, allowed interest on each of the payments on account of the judgments, from the date of the payment to the sheriff and constables. The contention is that interest on the plaintiffs’ demands could only run from the date of the demand, or, in the absence of'evidence of any demand as in this case, from the date of the institution of the suit. This assignment is based on the assumption, that the judgments were void, and that the payments by the plaintiffs -were voluntary. We have shown that the defendants are wrong on both propositions. The defendants contracted with the plaintiffs in writing that they would pay any and all such judgments: They failed to do so, and the plaintiffs, in order to relieve their
The point is also made that this action cannot be maintained jointly by the plaintiffs, as joint obligees, because the evidence shows that the husband paid none of the money in discharge of the judgments, and that, for this reason, the bond as to him was without consideration. There is no merit in this. The contract showed that the land upon which the house was to be constructed belonged to Mrs. McFall. Her husband had such an interest in it, as entitled him to become a co-obligee in the bond of indemnity. Whether Mrs. McFall or her husband paid the money to relieve the property from the judgments, could make no possible difference to the defendants; nor was it any concern of theirs that a joint judgment was rendered in this action in favor of both husband and wife. We must confess that we have been unable to understand or fully comprehend the force of the argument made in support of this assignment.
We have gone through this record with considerable care and we have found no error which in our opinion would justify a reversal of the judgment. With the concurrence of the other judges, the judgment will be affirmed.