190 Mo. App. 340 | Mo. Ct. App. | 1915
Lead Opinion
OPINION.
The appellant complains, first, that the court erred in admitting in evidence the notice of the lien and the lien filed for the reason that both show on their face that they named the owner of the land to be the firm of Ball & Gunning and not the defendant, The Ball & Gunning Milling Company, a corporation; and second, that the statement of the account set out is not a just and true account of the demand claimed as is contemplated by section 8217, Revised Statutes' 1909, and that section 8212, Revised Statutes 1909, requires plaintiffs to comply with the section first mentioned in this respect before they have a right to impose a lien for labor and material — in other words, that before plaintiffs have carried the burden of making out a case they must introduce evidence showing a compliance with the provisions requiring that a just and true account be filed.
The respondents meet this contention by asserting that the naming of a partnership as the owner did not mislead the defendant corporation; that the misnaming was an honest mistake and was therefore immaterial. We uphold the respondents in this as the facts show an • honest mistake in this respect and that the defendant was in no way hurt or misled, and pass the point by citing.the case of The Fruin-Bambrick Construction Co. v. Jones, 60 Mo. App. l. [See, also, Joplin Sash and Door Works v. Shade, 137 Mo. App. 20, 118 S. W. 1196; Henry v. Plitt, 84 Mo. 237; Bruner Granitoid Co. v. Klein, 100 Mo. App. 289, 73 S. W. 313.]
As to the second point urged by appellant the respondents contend, first, that the statement of account filed is sufficient to meet the requirements of the statute, and second, that as the defendant did not object
We will first dispose of respondents’ second contention. The authorities cited by respondents sustain the general rule that a party cannot on appeal raise a special objection to the admission of testimony where no such objection was interposed at the trial, and that by making a special objection at the trial he admits that in other respects the evidence is admissible. It is needless to cite the many cases which uphold these statements of the law, respondents having collated a number of them in their brief. There is, however, an exception to these general rules within which we believe the facts put this case. The burden, of course, is always on a plaintiff not only to state a cause of action but to offer some, evidence tending to establish each essential element necessary to permit a recovery,- until he has done that he fails to make out a case, and up to that time, in theory at least, the defendant may occupy the position of an onlooker. Thompson on Trials (2d Ed.), vol. 1, sec. 691, p. 629, under the heading “Evidence having no Probative Value,” states the rule as follows: “An exception to the foregoing rule relates to cases where the evidence, which is admitted without objection, is of such a character that the law ascribes to it no probative value whatever.” Neither a failure to object nor a wrong objection can change the legal effect of evidence. Thompson on Trials (2d Ed.), vol. 2, sec. 2244, p. 1500, in dealing with this question, declares, citing Missouri cases, that it is the province of the court to determine the legal effect of evidence, and — quoting—“ Thus,
Now, is the statement in the pleading that plaintiffs have filed a just and true account under the statute and an offer of evidence to sustain such averment
The case of Clark & Lemmon v. Brown, 22 Mo. 140, is cited by respondents in support of their position, but on examination we find that the complaint there was about a defective notice. The court held
What is said in the case of Rumsey Mfg. Co. v. Baker, 35 Mo. App. 217, was with reference to setting aside a judgment rendered at a former term of the circuit court. The question presented was whether at a subsequent term it was error to refuse to set aside a judgment rendered at a former term on a motion filed at the subsequent term setting up the fact that the court was without jurisdiction to render judgment because of defective service and a defective statement in the mechanic’s lien statement. No such question is presented in our case.
We cannot assent to the proposition that where a defendant specifies a wrong objection to offered evidence or makes no objection at all, he thereby admits the legal sufficiency of the evidence offered to establish that which requires probative evidence and waives the right to point out the failure of the plaintiff in making a case, where the case is tried before the court without declarations of law, judgment is rendered, and a motion for a new trial assigns as error the ground that ‘ ‘ the judgment is against the law as applied to the evidence in this case.”
The very purpose of a waiver is to prevent a forfeiture of a right. (40 Cyc. 254.) But a right which does not exist is not created by a waiver. If plaintiffs failed to file such a statement as is required by stat
Does the account filed set out in the statement meet the requirements of “a just and true account?” As to the amount claimed for extras there can be no doubt as to its failure; such items are in no way designated, itemized or shown except in the lump sum together with the balance claimed under the contract. As between an original contractor and the landowner the statement would not in any sense contain a just and true account for the demand for such extras, and certainly not in the case of a subcontractor. The authorities are now practically agreed that as between the landowner and an original contractor, where there is a contract calling for labor and material and the price is fixed at a lump sum, a statement filed showing the demand claimed for lienable items, setting forth the character of the items, for the price fixed in the contract, followed by the credits due thereon, is a sufficient account to meet the requirements of law, this, because the landowner knows what his contract calls for, he knows the terms thereof, and therefore is advised when he sees the lien statement showing the items which weré to be furnished under the contract. It seems that the same doctrine has been applied as between the landowner and a subcontractor. This we take to he settled by the following cases: Mahan v. Brinnell, 94 Mo. App. 165, 67 S. W. 930; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 40 S. W. 118; National Press Brick Co. v. Construction Co., 177 Mo. App. 573, 160 S. W. 1073; Hilliker v. Francisco, 65 Mo. 598. In the case last cited we notice that the court called attention to the fact that the owner knew of the contract between the subcontractor and the original contractor. However, in the three preceding cases that element is not mentioned nor made a prerequisite. And this again convinces us of the correctness of the trial
Dissenting Opinion
The testimony in the trial of this case was very brief and is dne, I think, to the fact that only two defenses were relied upon. One was that the notice is defective because it names individuals and not the corporation; the other is, that the lien statement is defective for the same reason. I think the record sustains this assertion of the defenses.
The majority opinion announces the correct conclusions and I think properly declares the law until the conclusion is reached, as announced in the latter part of the opinion, that the plaintiffs “failed to show that the extras were furnished under any contract whatever and therefor their case failed as to the amount claimed for extras.” The fallacy of this conclusion is shown, in my judgment, from the record wherein one of the plaintiffs testified: “Q. You may state to the court whether or not you had a contract with Watts and Stone for doing any work for Ball and Gunning Milling Company in Webb City, Mo.? A. Yes, sir: We had a contract to that effect. Q. Was your contract in writing or verbal? A. It was in writing.” The witness then identified the contract which refers to the plans for dimensions, depth, etc., of foundation, testified as to credits and then proceeded: “Q. What was the balance due after allowing all just credits and set-offs? A. $818.75. Q. Is the character of the work you did the work specified in this contract? A. Yes, sir.” Upon cross-examination this witness testified that the total amount “of the original contract was $7200.” This was not sufficient, after allowing credits, to make the full balance claimed, but “The rest of it was for work that Mr. Stone had the plans changed and put in.” The witness continued: “Q. Had the plans changed afterward? • A. He ordered heavier foundations and deeper excavations and so on, made the difference. Q. The work was actually put in on the
We may, however, for the purposes of a decision in this case, assume that the defendant did not concede that the allegations of the lien statement were proven, yet I think the testimony is sufficient to justify the conclusion that the plaintiffs did follow up the lien statement and show that all of the amount claimed therein was furnished under a contract. The lien statement alleges the date when the work “begun on contract of building and constructing eight concrete wheat tanks to be built and constructed of sand, chat cement and reinforced with iron rods and wire.. . . That the price of the cement, sand, chat, iron bars and wire, and the labor performed in the construction of said eight wheat tanks was $7600.35.” This means that such is the value of these items in the tanks. McDermott v. Class, 104 Mo. 14, 23, 15 S. W. 995. The testimony which I think supports this allegation and the lien statement has been quoted above wherein one of the plaintiffs testified that they did the work provided for in the contract. It is true the witness testifies that the original contract was changed by changing the plans and making the foundations deeper, but this yet allowed the changed contract to stand as the final and only contract for the performance of which the plaintiffs are entitled to a lien. This is the contract alleged in the lien statement and the one about which the witness testified. [National Press Brick Co. v. W. H. Lester Construction Co., 177 Mo. App. 573, 160 S. W. 1027.] I also deem the majority opinion in conflict with the opinion in that case. The inference is justifiable, and in fact no other conclusion should be reached, I think, that the contract to which reference is made in the lien statément is the contract after the plans had been changed. When the contract was changed it was yet, as changed, the contract, and the
The judgment, I am firmly convinced, should be affirmed.