Smith-Anthony Stove Co. v. Spear

65 Mo. App. 87 | Mo. Ct. App. | 1896

Ellison, J.

This is an action to enforce a mechanics’ lien for material sold by plaintiff to the defendant Speer, as contractor; the other defendants being owners of the buildings. The judgment was for plaintiff, enforcing the lien against the buildings. The owners of the property appeal.

Since the verdict of the jury was for plaintiff, we will assume to be true whatever the evidence tended to prove. Objection is made to the notice of intention to file a lien. The abstract does not disclose how the notice was served and we get an imperfect understanding-of just how the matter stands. But whether Hucke & Sexton be regarded as partners, or co-owners of the property, can make no difference, since it appears that Sexton was the one who purchased material and paid bills for the buildings. It is clear, from what is stated and from what seems to be conceded, that- he acted as agent for Hucke. The service of notice on him alone, as and for both, was, therefore, sufficient. He could receive the notice as principal, for himself, and as agent for Hucke.

It is urged that there was no proof that plaintiff relied on the lien when it sold the material and gave the credit. The evidence showed that the ‘ ‘plaintiff or its officers or agents” knew that the material was to go into these houses. It is true this does not show whether it was the plaintiff, or its officers, or its agents, who knew the fact. The most it shows is that one or the other did. But we think it only fair to say that under the circumstances, as developed in the case, the officers or agents were of such character as took part in the sale of the material. But, be that as it may, defendants submitted and had given an instruction adopting the same indefinite expressions, using the same language in substance. It is, however, said that though the plaintiff knew the material was to go into the houses, yet it was bond to show that it made the sale and gave credit, relying on the lien. We think this need not be shown in direct terms. If the evidence shows the sale was made on credit, with a knowledge on the part of the vendor that the material was to go into a building, the reasonable inference is, and may be drawn in the absence of anything to the contrary, that the sale was made and credit extended in reliance on the lien. And in this connection it was perfectly proper to permit the purchaser to state that he purchased the material for the buildings.

The point is made that the lien was not filed within the four months prescribed by statute. The evidence showed that the last item was purchased on August 19 (the account shows this and the evidence shows it correct) and the lien was filed November 25 thereafter. This was sufficient. It is true the petition alleges that the account accrued August 10, but we suppose this to be a clerical error. At any rate, it would make no difference which date is accepted as correct.

We are at a loss to understand why there should be any argument about whether the account accrued at the time the material was delivered on the cars at Chicago, or when delivered at the houses in Kansas City. It is clear that the delivery on the cars was after the sale and that the delivery and use at the houses was before the lien was filed. In either way it may be taken, the lien was filed within the proper time.

The statute directs that the lien paper shall be verified by the lienor, or some credible person for him. The affidavit did not show that the affiant made the oath as the agent of plaintiff, or for it. Neither did the original petition show that the affiant made the oath for the plaintiff,, nor did any other part of the record at that time. But afterward an amended petition was filed, showing the affiant to be the agent of plaintiff, and that he made the oath for the plaintiff. In Missouri Valley L. Co. v. Webber, 43 Mo. App. 179, we held that if the petition showed the agency of the affiant it was sufficient, since the statute, while permitting the affidavit to be.made by someone for the plaintiff, did not require that it should be so stated in the affidavit. The only difference here is that the agency was made to appear by an amended petition, and we think that was allowable.

We have considered the entire evidence as presented, as the basis of what we have said. At different periods of the trial, defendants presented a demurrer to the testimony, and we deem it proper to say that we have considered the entire evidence without regard to the merits of the demurrer at the particular time when it was presented; since, if a party offers testimony after his demurrer is overruled, the full testimony must be considered. . And so, if the court, in its discretion, permits the party against whom the demurrer is offered to present further evidence, we will consider such additional evidence in passing on the point whether a case was made for the jury.

We have gone carefully over the arguments and suggestions offered by appellant’s counsel and find nothing to justify a reversal. The judgment will, therefore, be affirmed.

All concur.