Miller v. Whitelaw, 28 Mo. App. 639

Miller v. Whitelaw

28 Mo. App. 639 | Mo. Ct. App. | 1888

Lewis, P. J.,

delivered the opinion of the court.

The plaintiff, as surviving partner administering the partnership estate of Fathman & Miller, sues to enforce a’ mechanic’s lien against the dwelling-house and lot, in Cape Grirardeau, owned by the defendant, Whitelaw. The defendants, Smith & Cofer, were the contractors with Whitelaw for the building of the house, and the plaintiffs, under a contract with Smith & Cofer, furnished the doors, window-frames, mouldings, and other mill furnishing materials which were put into the work. The account filed for the lien itemizes all the articles separately, and closes with the charge, “as per agreement, $807.” Credits are given amounting to $112, leaving the balance claimed, $695. The court, sitting as a jury, gave judgment for the plaintiffs, with the lien demanded.

The defendants object, in general terms, that the account filed for the lien was not in conformity with the requirements of the statute, and ought to have been excluded from the evidence. We can only infer the specific ground of objection from the authorities cited in its support. These were cases in which the accounts, were defective, in failing to set out the several items, in making a lumping charge for the whole instead, or in referring to another paper for the-items of the account. *642The account filed in this case is not open to any of these objections. All the items are distinctly set out, with their respective dates, so that the owner was plainly informed what materials went into his building, and at what dates, respectively. We think that the account was in substantial compliance with the directions given by the statute.

The court instructed for the plaintiffs that, in determining the value of the materials furnished by the plaintiffs and actually used by the contractors, Smith & Gofer, or either of them, in the erection of the building, “ the price agreed upon by plaintiffs and the defendants, Smith & Oofer, should alone be considered in this cause.” This was erroneous, and contrary to rulings of this court and of the Supreme Court. The rule is, that the contractor cannot bind the owner to any values agreed upon between him and a subcontractor or materialman. As against the owner, only the market value of the materials can be recovered. McMahon v. Bridwell, 3 Mo. App. 572; Kling v. Construction Co., 7 Mo. App. 410; Deardorff v. Everhartt, 74 Mo. 37. But it does not follow that this incorrect ruling should reverse the judgment. Its erroneous character consists chiefly in the omission of proper qualifications, which qualifications were fully supplied in the testimony. There was uncontroverted evidence tending to show that the. defendant owner, Whitelaw, was fully informed of the contract between the principals and the "subcontractors, and kept himself informed about it from time to time, by correspondence with the plaintiffs. This, according to the decision in Hilliker v. Francisco (65 Mo. 598), qualifies the operation of the general rule, and holds the owner to the prices of the materials, or to the aggregate sum charged for them, in the contract between the contractor and the subcontractor. It is also held in Deardorff v. Everhartt (74 Mo. 37) that the agreed prices between the contractor and the subcontractor will be received as prima-facie evidence of the market value. It does not appear from the record that the defendants made any question of the *643value of the materials, as fixed in the contract. Considering all these things together, we cannot perceive that the defendants were in any way prejudiced by the form or matter of the instruction, as given.

There was a dissolution of the partnership between Smith & Cofer before all the materials had been furnished by the plaintiffs under their contract. The defendants contend that this operated a discontinuance of the contract, so that separate lien proceedings became necessary. The cases cited are not parallel. In Gauss v. Hussmann (22 Mo. App. 115), the owner died before the completion of the building contract, and it was held, that, as in all cases of contracts for personal services, the death of one of the parties put an end to the contract, and the articles furnished or work done after the death could not be -blended in the same lien account with the charges that had accrued previously. This is obviously the law, for very simple reasons. But it was never supposed that a partnership firm entering into a contract with a third party could, by an act of dissolution, or any other voluntary act, release its members from the obligations of the contract. In the present case, all the materials were furnished under one contract, which was still subsisting when the last article was supplied. The fact that the last articles were‘shipped to the address of the partner who continued to carry on the business can make no difference whatever. The other cases cited are still less in point.

It is objected, further, that the lien account was not filed within four months after the indebtedness accrued, as required by the statute. The last item in the account bore date May 13, 1884, and the lien was filed on July 19, 1884. Here was an interval of less than four months. But it was in evidence that the items bearing date April 5 and May 13, were of articles which ought to have been included in former shipments, but had been omitted by accident, and also of a vestibule door which was intended to be substituted for one that had been previously sent, and found to be of the wrong dimensions. The defend*644ants, therefore, insist that these items should be considered as of the dates, respectively, when the articles were to have been first delivered, the effect whereof would be to place the entries at a date more than four-months prior to the filing of the- lien. This process involves the somewhat embarrassing- proposition, that we are to treat the articles as having been constructively delivered at a time when they might have been delivered, but for a mistake of the shippers ; and so, it would follow, by relation back to that time,- the subcontractors had become liable to pay for those articles some months before they were actually delivered or shipped. .We cannot so apply the doctrine of relation. By the terms of the contract, and the law governing the case, the indebtedness for the” materials accrued at the time of the last actual shipment “on board the boat” at St. Louis, and not before. There is nothing in the point.

With the concurrence of all the judges, the judgment is affirmed.