Ridge v. Mercantile Loan & Trust Co.

| Mo. Ct. App. | Jan 29, 1894

Ellison, J.

— This is an action to enforce a mechanic’s lien on property of defendant, Watson, who bought the material of plaintiffs. Defendant, Mercantile Loan and Trust Company, are interested in the building by reason of being the beneficiaries in ■ a deed of trust thereon. The judgment was for plaintiffs against Watson for the debt and that the lien be ■enforced against the property. The Mercantile Company alone appeals.

A consideration of defendant’s contentions on this .appeal has satisfied us that they are not sound.

The lien paper itself was in proper form and was ■properly admitted and considered in evidence unless, 'its sufficiency was impaired or destroyed by other facts • appearing in evidence.

It appears that plaintiffs, or one of them, testified 'that in selling the material they looked to defendant, Watson, in the first instance forpayment, but that if they ■could not get their money from him they would rely ■upon the building. We think this does not show that the material was sold without reliance upon the building. The testimony amounts to no more than that the plaintiffs expected to be paid for their -material, but that if they were not, in due time, they would enforce • a lien against the building. This is, doubtless, the ■expectation ordinarily entertained by material men.

It seems that plaintiffs had on their books a ¡general account against defendant, Watson, in which ■account there was charged the items of material which went into the building in controversy as well as items that went into other buildings; and that in drawing off 'the account in suit they did so by selecting from the ¿general account on their books the particular items of material which were purchased for, and which went into, 'this building. This mode of bookkeeping is not .sufficient to invalidate the account where it otherwise appears that the account, as presented for enforcement as a lien, is just and true. On an issue whether the ■account is correct, just and true, such mode of book-keeping might be a proper circumstance to be considered in determining' the issue. The law is not •concerned as to how a material man shall keep his account, or, indeed, whether he enters one on books at all. The law is satisfied if a proper and correct ■account is in fact presented for enforcement as a lien.

There was a payment made by Watson of $50, which was without direction as to how it should be .applied and distributed as a credit on the whole account against him; $16.83 being applied to the account in suit. To this we can see no valid objection.

It appears that material which went into the building in controversy amounted to between $135 and $150. That the total amount of the account as now sued on is $104.23, credited by a total of $24.13, leaving abalance claimed of $80.10. This shows, and so it was testified to at the trial, that there were items -of material furnished which do not now appear in the account. In other words, the account as presented •does not show all the items which might have been included. But it further more appears that the reason .such items do not appear is for the reason that they are balanced (as defendant alleges) by credits which likewise do not appear. This, it is contended by defendant, shows the account not to be just and true and invalidates the lien. We will not discuss the contention as it is made by defendant, since such contention is not fairly borne out by the fact, at least as we must consider the facts after the finding of the trial court. It appears that defendant, Watson, had an individual transaction with Ridge, one of the plaintiffs. That Ridge was indebted to him and that in their settlement the omitted items in this account were settled; that is, Ridge, in effect, settled what he was owing Watson, or a part of it, by allowing it with Watson’s consent -to go in settlement of certain items of this account, which were, in consequence, omitted from it. when it was drawn up for the purpose of presenting as a lien. The partnership has ratified this individual transaction of one of the partners, and, since it amounts to a settlement of a certain portion of the account, as it stood originally, it thenceforth eliminated that portion.

An examination of other objections satisfies us that nothing has occurred at the trial which would justify our interference. Affirmed.

All concur.