266 Mo. 595 | Mo. | 1916
Relator was the defendant in the circuit court of the city of St. Louis in a mechanic’s lien suit in which judgment went for him. The plaintiff in that court, The Banner Lumber Company, appealed to the St. Louis Court of Appeals, which reversed the judgment and remanded the cause for new trial; whereupon relator sued out this writ of certiorari, bringing here the record of the Court of Appeals.
In his brief, relator confines the questions be raises to those he asserts arise out of the facts stated in the opinion of the Court of Appeals. Not being asked to go beyond the opinion of that court for the facts, the question whether we can do so is not involved. Relator contends that the Court of Appeals failed to follow designated controlling decisions of this court upon the question as to (1) the sufficiency of the description in the lien paper, or account of plaintiff’s demand, of the materials furnished; and (2) the sufficiency of the evidence offered in support of the lien account. The facts pertinent to each of these contentions, as here presented, will be stated in connection with the discussion of the questions of law raised for decision.
Except as hereafter noted, these are all the facts appearing from the opinion of the Court of Appeals bearing upon the character of the lien statement or account so far as concerns the description of the materials furnished. Upon these facts, after discussing and quoting from numerous decisions, the Court of Appeals held: “It would appear that the lien account here in question sufficiently reveals the material for which the lien is sought to apprise the owner and the public of the nature thereof and to disclose that the demand is one within the lien law.”
Relator insists this conclusion is in conflict with certain decisions, including the following decisions of this court: Mitchell Planing Mill Co. v. Allison, 138 Mo. 50; Grace v. Nesbitt, 109 Mo. 9; Rude v. Mitchell, 97 Mo. l. c. 373.
The principle announced in those cases which relator contends is contravened by the decision of the Court of Appeals in the record before us is that “the account which this law contemplates is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. The account may consist of one or more items. It may be all on one side or mutual in its
The specific complaint relator makes is that the “lien paper does not show on its face what it is for.” This objection in the circumstances of this case amounts to a complaint that the Court of Appeals’ description of the lien account shows that the account did not describe the materials furnished in the manner required by the statute as construed in the cases cited.
The real objection relator makes to the lien account is that the account does not sufficiently set out the character of the materials furnished; and the sole question this objection presents, when the Court of Appeals’ statement of facts in this connection is analyzed, is whether a description of materials furnished when made in abbreviations and trade terms is a compliance with the statutory requirement that a “just and true account of the demand” shall be filed. [Sec. 8217, R. S. 1909.]
In Henry v. Plitt, 84 Mo. l. c. 241, and Lumber Co. v. Edward B. Stoddard Co., 113 Mo. App. l. c. 314, 315, it was held that the use of abbreviations and trade terms in the description of the items of the account was permissible. In Henry v. Plitt, an item reading “May 8, 1880 — 3, 2, 12, 16, 96. . . . 17% . . . $1.68,” under a heading indicating that the figures related to lumber, was held sufficient, the court saying the figures were “known by business men to mean, when applied to a lumber accjunt, that on the eighth day of May, 1880, there were furnished three pieces of lumber 2x12 inches in thickness and width and sixteen feet long, aggregating ninety-six feet of lumber, which
We have the record in that case before us. The heading of the account which is there said (84 Mo. l. c. 241) to show “that the figures relate to lumber” reads as follows:
“Henry, Barker & Coatsworth.
“Wholesale and Eetail Dealers in Lumber, Lath, Shingles, Doors, Sash, Blinds, Moulding, Lime, Plaster, Hair, Cement, Building Paper and Paints.
“Sold to J. S. Southerland & Co., contractors with Mr. A. M. Plitt, Kansas City, Mo.”
Then follows the account of several pages, a large per cent of the items in which are similar to that set out in the opinion. In that case, as in this, the account was upon a bill head or stationery which first stated the name of the lien claimant and then disclosed the character of its business. In that case there was an express statement that the claimant was in the lumber business. In this, there appears an equivalent disclosure, in that the heading shows that the claimant is a lumber company; that it is a corporation is apparent from its bringing the suit as it did; being a business corporation its name, necessarily, designates its business. [Sec. 3339, R. S. 1909.]
Prom the facts stated by the Court of Appeals it is clear the lien account in this case is well within the rule announced in Henry v. Plitt, supra.
Further, it is stated in the opinion of the Court of Appeals that the purpose of the suit was to enforce a lien for labor and materials ‘ ‘ for the erection of certain buildings. ’ ’ In view of the fact that no point was made upon it, we are at liberty to assume that the lien account contained a statement of that character, describing the buildings.
Prom what has been said, it appears, therefore, that The Banner Lumber Company, a corporation en
What the court said in that case is to be understood and applied in the light of the facts before it. That case is wholly unlike this, and that holding has no sort of bearing upon the question relator raises in this. There is no question here as to priorities between liens and incumbrances. This is simply a suit by the lien claimant. Relator endeavors to lift out of the opinion in Coe v. Ritter a statement applicable to the facts of that case and apply it broadly to a case in which the facts are wholly different. His contention, in the last analysis, is based upon the assumption that the exhibit attached to the original petition materially differs in its substance from the lien account. The fact that the aggregate of the items in the bill of particulars exceeded those of the lien account by the insignificant sum of $2.46 is of no consequence. Relator is in no position to complain that the lien account did not contain all the items for which a lien might
So far as concerns the items in the exhibit which seem to be consolidated in the lien account, if appears from the statement of the Court of Appeals that the aggregate amounts and charges are equal to the amounts and charges of the consolidated items in the lien account. In no- event could the consolidation of a few items in this manner invalidate the whole lien account, whatever its effect upon the items so consolidated. [Walden v. Robertson, 120 Mo. l. c. 44, 45; Allen & Co. v. Mining & Smelting Co., 73 Mo. l. c. 693.] Further, the absence of dates in connection with particular items in a lien account is not important when, as here, it appears from the account that the materials were furnished between given dates which fall within the beginning and close of the account. [Ittner v. Hughes, 133 Mo. l. c. 691.] We are also of the opinion that the mere fact that the lien account, in the manner shown here, consolidates in one undated item several charges which show .that each was for lumber of the same grade, quality, character and price and which, in the aggregate, include the identical quantity of material and the identical amount charged in the consolidated item, the whole being otherwise lienable matter, is not an objection the owner can urge as against the lien claimant even to the extent of avoiding the consolidated item, there being no proof of fraud or bad faith or suggestion of resulting injury to any one.
“These betterment statutes are remedial.in their character,- and, when reasonable and not oppressive, are to be liberally construed. ... A fair and substantial compliance with the statute is all that is re
Because of the errors it pointed out, the Court of Appeals properly reversed the judgment, and because the evidence fell short of proving a few of the items of the lien account, as the Court of Appeals held, it was necessary to remand the cause. Delator’s argument that the remandment without a direction of judgment for respondent conclusively shows that the Court of Appeals found the evidence insufficient to support any judgment for plaintiff in the lien suit does not impress us. Our writ is quashed.