Uhrich v. Osborn, 106 Mo. App. 492

106 Mo. App. 492 | Mo. Ct. App. | 1904

ELLISON, J.

This is an action to enforce a mechanic’s lien for material furnished to a contractor to go into a building built for and owned by defendant DeVoe. The judgment was against the contractors but in favor of DeVoe as to the lien. Plaintiff appealed.

The cause was tried before the court without the aid of a jury. There was no finding of facts nor declarations of law. We are thus left to determine whether there was any evidence to uphold the judgment denying the lien. There can be but two reasons assigned in favor of the judgment; one, that plaintiff himself vitiated the' lien by including therein some articles in the account, which did not go into the building; the other, that the account was not filed within the time limited by the statute.

As to the first reason, the evidence does show that there were three items included in the account which did not go into the building. These were columns of the value of $9; one distribution box at $1.25 and two doors at $11.70, total, $21.95. The total account was $831.18 reduced by credits to balance of $562.15. There was no evidence of bad faith or fraudulent intent in putting in those items. Excepting the distribution box, they were actually furnished to the contractors but did not go into defendant’s building. The box was contracted for but not furnished and by mistake not credited. The items were small in value compared to the balance claimed. They were easily separated, including their price, from the other articles and there being no evidence of fraudulent design they should not affect thevalidity of the lien for the account remaining after taking them out. 20 Am. and Eng. Eney. Law (2 Ed.), pp. 507, 508; Ittner v. Hughes, 133 Mo. 679, 690; Allen v. Frumet, 73 Mo. 688; Schroeder v. Mueller, 33 Mo. App. 33.

The last item of the account is for three doors furnished November 25. The last item previous to. that was furnished October 30. If neither of the items of November 25 went into the building, it is conceded that the account was filed too late, since that of October 30 was not within the statutory limitation- of four months. But a fair interpretation of the undisputed evidence is that one door, at least, went into the building which was furnished November 25.

When there is no substantial evidence to support a judgment it should be reversed. May v. Crawford, 150 Mo. 504, 527.

The judgment is reversed and cause remanded with directions to render judgment sustaining plaintiff’s lien account, less said sum of $21.95.

All concur.