Riverside Lumber Co. v. Schmidt, 130 Mo. App. 227

130 Mo. App. 227 | Mo. Ct. App. | 1908

GOODE, J.

Plaintiff seeks to enforce a mechanic’s lien against a house and lot owned by defendants Mattie V. Adams and Ben H. Adams, husband and wife, in the city of Cape Girardeau. Those parties had let a contract to defendant A. J. Schmidt to erect a house on their lot according to prepared plans and specifications, and for the price of $1,765. Schmidt bought lumber for the house from plaintiff and having failed to pay for it, a lien was filed against the property for $897.83, which lien is the subject-matter of the present action. In their answer, after stating the contract with Schmidt, Mr. and Mrs. Adams say Schmidt abandoned the job long-before the house was completed and has neither finished the building nor employed any one else to finish it; that they paid Schmidt while the work wag in progress $1,600 on the contract price and the cost of completing the building from the stage in which he abandoned his contract would be $700. They deny plaintiff furnished Schmidt all the items of lumber charged in the lien account, deny the prices agreed on between plaintiff and Schmidt for the different articles of lumber set out in the lien account were as large as stated, or that all the -articles specified went into the building. Other statements are made in the answer which are irrelevant to the points to be determined on the appeal.

When the case was called for trial a continuance was requested by defendant because Mrs. Adams was ill and unable to attend court. An application for a continuance was filed, stating her illness and that she was needed at the trial to suggest to her attorney, she having supervised the construction of the house. Besides this statement in the application, Mrs. Adams was said to be an important witness and what she would testify if present was stated. The application was accompanied by a certificate of a physician, stating Mrs. Adams was in infirm health, had been under the professional care of the physician for some time and was unable to make- the trip to the county seat of Cape Girar-deau county without great injury and peril to her life. It is contended for plaintiff this certificate of the physician is not part of the record as the abstract does not show it was included in the bill of exceptions, or that it became a part of the record proper by being attached to any pleading or document. This abstract is like many others we have to deal with. It is defective in not distinguishing clearly between entries) which belong to the record proper and matters which ought to be in the bill of exceptions; but this irregularity is unimportant in the present instance. Plaintiff’s counsel admitted Mrs. Adams, if present, would testify according to the statements in the application, and beca.use of this admission the court overruled the motion for a continuance. Complaint is made of this ruling as an improper exercise of judicial discretion. A careful study of the record has satisfied us it worked no prejudice to the rights of the defendants and ought not to cause a reversal of the judgment. The enforced absence of a party to a cause of action is not always good reason for a continuance, and whether in a particular case it is or not, is to be determined by the trial court. It is true a refusal to continue for the absence of a party to the action, is treated as reversible error when the absence was unavoidable and the appellate court thinks harm was done by compelling a trial. Defendants had the benefit of what Mrs. Adams would have testified, and as her husband was able to be present at the trial, it is not manifest that the court below exercised its discretion- unjustly. The decision of the point is controlled by these precedents : Ownes v. Tinsley, 21 Mo. 423; Gerber v. McCoy, 23 Mo. 295; Hurck v. St. Louis Exposition, 28 Mo. App. 629.

It is insisted the judgment ought to be reversed because the petition wholly fails to state a cause of action in omitting to allege the lumber was; furnished for and on the credit of the building. What the petition says ás to this matter is: “Said materials were furnished for and used in the construction of a certain two-story frame building, improvements and appurtenances thereto, and situated on the following described ground,” etc.; and next that the property, at the dates the lumber was furnished and at the date the action was brought, was the property of and owned by Ben H. Adams and Mattie V. Adams, and that Schmidt was the original contractor with them for the erection of the building. In order for a materialman to become entitled to a lien on a building erected for the owner by a contractor, the materialman must furnish the material to the contractor pursuant to a. contract between the latter and tbe owner for nse in tbe building and it must be used in tbe building. [R. S. 1899, sec. 4203; Badger Lumber Co. v. Stepp, 157 Mo. 366, 57 S. W. 1059.] It wag conclusively shown tbe material in question wag furnished under such circumstances for use in tbe building said contractor was erecting for Mr. and Mrs. Adams, and shown, too, tbe material was used in tbe building. If it is essential to state, tbe material was furnished under a contract between tbe material-man and tbe owner, tbe present petition complies sufficiently with that requirement. [McLaughlin v. Schawacker, 31 Mo. App. 365.] We know of no case which bolds a lienor must aver in a petition to enforce bis lien that be sold tbe material on tbe “credit of tbe building;” but on tbe facts stated and proved in tbe present, case it is to be presumed plaintiff sold the lumber in reliance on tbe security tbe lien law afforded and not solely on tbe personal responsibility of tbe contractor Schmidt. [Stevens Lumber Co. v. Kansas City Lumber Co., 72 Mo. App. 248, 261; Western Sash & Door Co. v. Buckner, 80 Mo. App. 95, 101.] We consider tbe petition good. [Scbulenberg, etc., Lumber Co. v, Johnson, 38 Mo. App. 404.]

The judgment is affirmed.

All concur.