31 Mo. App. 365 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This is an action by a subcontractor to recover a balance due from a firm of principal contractors and to establish a mechanic’s lien for such balance against a lot of ground and a building. The original petition was filed on the nineteenth of May, 1887, and the principal contractors, Dennis Dempsey and William J. Dempsey, and also the owner, Christopher Schawacker, were made defendants. Personal service was had upon each of these defendants. On the sixteenth of July, 1887, two other defendants, Maria W. Johnson and John H. Tennent, entered their appearance, and the plaintiff, by leave of court, filed an amended petition, and on his motion summons was ordered for the other defendants, Mathilda Davis, James S. Davis, her husband, and James S. Davis as trustee for Mathilda Davis. In accordance with this motion, summons was issued for the last-named defendants on the eighteenth of July, which was returned duly executed. The amended petition was not served on the defendants Dennis Dempsey and William J. Dempsey. These defendants filed no answer. The other defendants jointly answered by a general denial, followed by a special traverse of the essential allegations of the amended petition, and an averment that the plaintiff had failed to comply with the statutes in reference to mechanic’s liens by filing a.
I. That the petition is not sufficient, under section 3166, Revised Statutes, to entitle the plaintiff to a mechanic’s lien, for the reason that the account therein set forth embraces labor and lime, brick and other materials, and the petition is open to the objection that it embraces a lumping charge. This account was as follows:
“January 19, 1887.
“To contract price for brick-work on building, 414 South 3rd street, St. Louis, under contract with William Dempsey and D. J. Dempsey......................$5,738 00
“These labor and materials furnished from September 30, 1886, to and including January 19, 1887. (Made up as follows ):
*371 “ To labor and materials in furnishing and putting into building of Chris. Schawacker, 414 South 3rd street, St. Louis, Mo. (including brick, mortar, labor, and all materials), 10,156 stock brick at $42.00 per M.................. 426 57
To labor and materials in furnishing and putting into .same building (including brick, mortar, labor, and all materials) 245,073 hard red brick at $12.50 per M.....’.. 3,063 40
To hauling scaffolding for work on said building.................. 20 00
To use of scaffolding on work on said building................... 85 00 '
To red paint used in said building,' four barrels.................... 25 39
To allowance made for shortage in building and walls, credit agreed to be given Schawacker......... 117 64
$3,738 00
Credits:—
Cash by order Dec. 11, ’86.$ t/oo 00
Cash by order Dec. 17, ’86. 800 00
Cash by order Dec. 27,’86. 1,200 00
Credit for shortage as above. 117 64 $2,617 74
$1,120 36”
The ground on which it is claimed that the above account embraces a lumping charge of several materials is that it does not separate the amount due for brick from the amounts due for mortar, for other materials, and for labor. We do not think that the account is open to this objection within the meaning of the decisions which bear upon this question. The account is framed with the view of making separate, charges for two classes of brick laid in the wall, according to what is known as
II. It is next objected that the petition fails to state a cause of action, because the account annexed thereto was not a just and true account, within the meaning of section 3176, Revised Statutes. This objection is based upon the following grounds: That there is an item on the debit side, “To allowance made for shortage in building and walls, credit agreed to be given Schawacker, $117.64” ; that on the credit side of the account there is a “credit for shortage as above, $117.64,” from which it is argued that no credit was given ; and that, in order to fill out the amount of the contract price of the brick work on the building, which was $3,738, it was necessary to charge up the following items:
“ To hauling scaffolding for work on said building..........................$ 20 00
To use of scaffolding on work on said building.......................... 85 00
To red- paint used in said building, four barrels......................,____ 25 39
To allowance made for shortage in building and walls...................... 117 64
Making a total of.................$248 03”
We think these objections untenable. The objection that the item for shortage is on both the debit and the credit side of the account is merely specious, since it is not necessary to put such an item in the account at allin fact, it is not an item. It was evidently placed there by the draughtsman of the account on the conception of showing how much was allowed for shortage in the building and walls. Precisely the same balance would have been arrived at if the plaintiff had drawn.
■ III. Another objection is made to the petition, which is that it fails to aver that any material, work or labor was furnished by the plaintiff at the request of the defendant, or that the material for which the-lien is claimed was reasonably worth the prices charged for it; The first clause of this objection is bad in law, and the second in fact. It is not necessary, in the petition of a subcontractor, to enforce a mechanic’s lien, to aver that the materials were furnished at the request of the owner of the property. He states a case entitling him to a lien within the statute, when he states that the materials were furnished at the request of the principal contractor and under a contract between the principal contractor and the owner; and that is stated in this petition. It is a mistake in point of fact to assume that the petition does not state that the material was reasonably worth the prices set forth. It contains the following allegation : “Plaintiff says that the material, work and labor fur nished, as above set forth, in the account hereinafter copied into this petition—that all of said material, work and labor were actually used in and upon said building, and were reasonably worth the prices charged in said account.”
IV". The next objection, marked V., in the appellants’ printed, argument, may be resolved into ah objection to the course of the trial, which, as is argued, állowed the introduction of jjardl evidence to cure what
V. There is an objection to an observation made by the court in the presence of the jury, claimed to have been prejudicial to the appellants ; but, as this was not renewed in the motion for new trial, it is not available on appeal. McCord v. Railroad, 21 Mo. App. 92; Bevin v. Powell, 11 Mo. App. 216, 220.
yi. Another objection is, that the trial court proceeded to final judgment against the owner of the land
We see no prejudicial error in the record, and the judgment is accordingly affirmed.