Schroeder v. Frederick

33 Mo. App. 28 | Mo. Ct. App. | 1888

Rombaxtee, P. J.,

delivered the opinion of the court.

Plaintiffs, under a contract with one Kaiser, furnished certain materials for plastering two houses standing on contiguous lots, and upon their account, remaining unpaid, filed a lien claim against the property, which they prosecuted to judgment, first before a justice where the suit was instituted, and afterwards in the circuit court, to which the owner of the property had taken an appeal. From the last judgment the owner appeals to this court.

The errors. assigned are numerous and will be noticed in their order.,

I. It is claimed that the justice had no jurisdiction and hence the circuit court could acquire none by appeal, since the statement filed before the justice was devoid of averring certain jurisdictional facts. The statement avers the filing of the account “ together with a notice stating the date when, and the justice of the peace before whom', the action is instituted for the enforcement of the lien. This states a compliance with the requirements of section 2874, Revised Statutes. It is immaterial whether the notice in regard to the institution of this suit is filed in the clerk’s office simultaneously with the lien account, or subsequent thereto; all that the statute requires is that it should be filed before the commencement of the suit. The object of the statute, as we decided in Ewing v. Donnelly, 20 Mo. App. 11, is to preserve in the circuit clerk’s office, record evidence of each step taken towards the enforcement of the lien.

II. When the lien account was offered, in evidence, the defendant objected to it, specifying seven distinct grounds of objection, of which the following are entitled to consideration. The account stated that the material was used in the erection of two houses situated on contiguous lots, and erected under one general contract. The defendant claimed that this was insufficient to show that the two houses were subject to one lien. The statute (R. S. sec. 3195) provides : “ When the improvement consists of two or more buildings united together, and situated upon the same lots or contiguous lots, or upon separate buildings upon contiguous lots, and erected under one general contract, it shall not be necessary to file á separate lien upon each building.” Under this section it is unnecessary to file more than one lien for materials or labor, provided the buildings were erected under one general contract and stand on contiguous lots, and the fact whether any or all the buildings lap over is wholly immaterial.

The defendant further claimed that the lien account was insufficient because the affidavit did not state “that all just credits have been given.” The affidavit uses the words that just credits have been given, omitting the word all. Without deciding the question whether there is any substantial difference between the two statements, it is sufficient to say that the statute does not require that either of them should be contained in the affidavit. The statute requires that the account filed should be a just and true account of the amount due after all just credits have been given, and not that the affiant should allege it to be a just and true' account after all just credits have been given, in so many words. The fact whether all just credits have been given is matter of judicial inquiry. An account cannot be just and true which omits just credits.

III. It appeared in evidence that eight bushels of white lime of the aggregate value of three dollars, forming part of the materials sued for, did not enter into the construction of the building, but were wasted. The testimony tended to show that plaintiffs knew of this fact before they filed their lien account, and the defendant claimed that that fact of itself made their lien claim void. The plaintiffs were materialmen. The contractor to whom they sold the lime was clearly not entitled to any credit on account of this waste, and whether the defendant owner was entitled to such credit was a fairly debatable proposition, since in the erection of all structures there is more or less waste of material. However that may be the plaintiffs were clearly entitled to the benefit of the saving clause of section 3182, Revised Statutes, and as there is no pretense that the judgment obtained by plaintiffs includes these three dollars, the defendant is in no position to complain. Kershaw v. Fitzpatrick, 3 Mo. App. 575 ; Johnson v. Building Co., 23 Mo. App. 549; Allen & Co. v. Mining Co., 73 Mo. 692.

IY. The defendant also complains that he offered to show that he had paid out to sub-contractors, materialmen and mechanics, more than the contract price of the building, and that such offer,was erronously ruled out by the court. The offer was not accompanied by any claim that the payments thus made were compulsory, or that they were made in good faith without notice of plaintiff’s demand, and thus the defendant failed even to bring himself within the rule of Garnett v. Berry, 3 Mo. App. 205, 206, followed in Henry v. Rice, 18 Mo. App. 507, where it was held that under the limitations above stated the contract price between the owner and contractor furnishes the limit of the liability of the structure to claims of sub-contractors and materialmen. We do not therefore feel called upon to decide in this case whether the two cases referred to are in conflict with Hilliker v. Francisco, 65 Mo. 598, as the ruling of the trial court was correct even if Garnett v. Berry is still the law.

We find no error in the record and affirm the judgment. So ordered.

All concur.