Meyer v. Schmidt

130 Mo. App. 333 | Mo. Ct. App. | 1908

GOODE, J.

These plaintiffs are partners doing a general hardware business in tbe city of Oape Girar-deau. Defendants,. Mattie V. Adams and Ben H. Adams, are husband and Avife and owners of lot 8 of range 1 in said city. Defendant A. J. Schmidt is a contractor and builder Avitk whom tbe Adamses contracted in 1905 to erect a two-story frame dwelling bouse on their lot. Schmidt was to furnish the labor and material needed in tbe construction of tbe house, and in the course of tbe work be purchased bardAvare from these plaintiffs for use in tbe building to tbe amount of $199.23, for which be never paid. Plaintiffs filed a lien on the property to secure payment of tbe demand and afterwards instituted tbe present action to enforce tbe lien. Tbe petition as originally filed, alleged the contract between tbe OAvners '(Mr. and Mrs. Adams) and Schmidt for tbe erection of tbe bouse; Schmidt to furnish tbe required material and labor; that tbe material furnished by plaintiffs to Schmidt was under a continuing contract between plaintiffs and Schmidt and was all ’used by tbe latter in tbe construetion of tbe bouse of bis codefendants. Tbe material was listed in an itemized account attached to tbe petition and called for in it as “Exhibit A,” which exhibit said the material was furnished for the Ben Adams building. Mr: and Mrs. Adams filed their separate answer in which they denied each allegation of the petition, averred Schmidt agreed to build the house for $1,765, but abandoned the job before the building was completed and that they had paid him $1,600 on the contract price before plaintiffs gave notice of any demand for materials furnished to him. The answer further stated it would require $700 to complete the building, and that Mr. and Mrs. Adams were not indebted to Schmidt in any way whatever.' The answer denied Schmidt furnished the kind of material for the building which was called for in the plans and specifications and averred they (the Adamses) did not waive the departure from the plans and specifications. On motion of plaintiffs, portions of the answer were struck out. Those portions were the averments that Schmidt had been paid $1,600 on the contract price of the building prior to the time Mr. and Mrs. Adams were given notice plaintiffs were subcontractors of Schmidt; that it would cost $700 to complete the .building and the owners were not indebted to Schmidt in any way and were not indebted to him when first notified of plaintiffs’ demand. No error occurred in striking out those portions of the answer, for they stated no defense to the demand of plaintiffs, who, as subcontractors, were entitled to a lien and to enforce it, regardless of whether or not-the owners of the property had paid Schmidt the full contract price and would have to pay more money to complete the house. This proposition was affirmed by the Supreme Court in a careful opinion expounding several clauses of our mechanic’s lien act in comparison with the terms of similar acts of other States, and overruling an appellate decision to the contrary. [Henry v. Evans, 97 Mo. 47, 10 S. W. 868.] Nor was Schmidt’s default in not using the kind of material called for in the plans and specifications a defense. If plaintiffs furnished the material in question to Schmidt for the building, under a contract, and pursuant to his contract with the owners, and he used it in the building, plaintiffs are entitled to a lien. If it was not the material called for by the specifications, the owners should have seen it was not put in the building, in which case a lien against the property would not lie. [Simmons v. Carrier, 60 Mo. 581.] We have been cited to no authority, nor are we acquainted with any, which binds a subcontractor who furnishes material for an improvement to ascertain, on peril of acquiring no lien, that the material is of the kind called for in the contract between the owner of the property and the origina.! contractor.

An exception was saved to the refusal of the court to grant a continuance on account of .the absence of Mrs. Adams. We dealt- with this “question in the case of Riverside Lumber Co. v. Schmidt, Mo. App. ——, and what was therein said is applicable to the point in the present case, as the facts are identical touching the application and the admission in evidence of what Mrs. Adams would testify.

After judgment and pending a motion for new trial, plaintiffs asked and were granted leave to amend their petition by making it show all the items of the account were sold to Schmidt “for the credit of said house;” i. e., the house he was building for Mr. and Mrs. Adams. Before this amendment, though the petition averred Schmidt was the contractor to build the house and was to furnish all the material for it and further averred all the hardware in question was sold to Schmidt and used by him in the house, it failed to aver the articles were sold to him for the house. The petition was not attacked either by demurrer or answer, and evidence was received without objection which conclusively proved the material was furnished by plaintiff to Schmidt for use in the house he was building for his codefendants and was so used. In a case of this kind the petition ought to aver the material for which a lien is sought was furnished for the house; for it is only in such a case the statute gives a lien. But we think the amendment, which did not substitute a new cause of action, Avas proper and Avithin the scope of our statutes. [R. S. 1899, secs. 660, 672.] An authority in point is Sawyer v. Railroad, 156 Mo. 468, 477, 57 S. W. 108.

The judgment'is affirmed.

All concur.