150 Mo. App. 61 | Mo. Ct. App. | 1910
Action to enforce a lien for material furnished for two one-story frame dwelling houses Nos. 5551 and 5558 Maifit avenue in St. Louis on lots 3 and 4 of city block 5254. Just west of those two houses two others, Nos. 5555 and 5559, were erected at the same time by defendant W. N. Ware, on lots 5 and 6 of said c-ity block. In March, 1907, John Powers owned the four lots. He contracted Avith Ware to build two frame houses for him on lots 5 and 6 for $2400, or $1200 each, agreeing to pay $800 of the cost by conveying to Ware lots 3 and 4. Under this arrangement Ware set about' the erection of the houses, two for himself and two for Powers, all nearly alike. Ware began construction work the last of March and bought lumber and materials he needed for the houses from plaintiff. Powers had not yet executed a deed to Ware for lots 3 and 4, and did not until April 25, 1907, and then instead of conveying directly to Ware, by direction of the latter conveyed the two lots by separate deeds to John Sullivan, who took them in trust for Ware and held no personal interest in them. April 29, 1907, Sullivan executed a deed of trust to E. F. Kilgen, as trustee for P. F. Jolly, on lot 4, to secure a note for $1000, due three yeare after date, and six interest notes for $30 each, and on the same date executed a deed of trust to E. F. Kilgen, as trustee for Jolly, on lot 3, to secure similar notes. On May 15,
One contention here is that the lumber and material mentioned in the lien account were not proved to have gone into the two houses on lots three and four; that is to say, the material purchased of plaintiff and used in those houses was not distinguished from the portions used in the houses on lots five ¿nd six, retained by Powers. Ware did not make separate contracts with plaintiff for material for ea.ch of the four houses, or separate contracts for lumber for the two houses built for himself and the two built for Powers, but made only a general contract for lumber to be used in the four houses on the fonr lots. The method of proof adopted to show what materials were sold and delivered by plaintiff for the four houses was this: All materials ordered from time to time were selected from plaintiff’s stock at its place of business and loaded for delivery to Ware on Ware’s Avagons, sometimes on plaintiff’s. A triplicate dray ticket was made out for each load, describing the different pieces of lumber in the load, and there were thirty-one of these tickets, each representing a load, of which Ave Avill copy one:
“Pieces ' Size Length Feet Description Price Amt.
(Ticket No. 3; date 2-24-’07)
66 2x4 10 440 No. 1 Y. P. 25 11.00
40 2x4 14 373 No. 2 Y. P. 23 8.58
1 Keg. 20d Com. Nails .................. 2.80
22.38”
One ticket Avas retained by plaintiff at its yard and copied into its ledger as a charge against Ware, the othpr two tickets were turned over to the driver of the load, who, Avhen he delivered the load at the Maffit lots, handed one of the tickets to the person who received the lumber for Ware, the receiver signed the third tick
It is said the material used in the two houses to be liened Avas not identified and plaintiff arbitrarily apportioned to those houses parts of the material sold for the four houses subsequent to July 3d, or the interval during Avhich the purchases covered by the lien account occurred. If the testimony established this contention, it would be fatal to plaintiff’s case, for the identity of the materials which went into the improvements must be shown for a lien to lie. [Schulenberger v. Vrooman, 7 Mo. App. 113.] Plaintiff followed no such course of proof, but on the contrary Ware himself had noted the different pieces of lumber and other material bought of plaintiff and used in his two buildings; did so in a careful inspection and testified unequivocally regarding each item, thus verifying in every particular the lien account and proving it represented only materials used in his tAvo houses.
But defendant contends an account cannot be split under the circumstances we have here. Suffice to say
It is further said that even if plaintiff’s account might be split, the method used to prove the items claimed in the lien account Avas improper. It is argued the evidence does not show the respective stages toward completion of the four houses on April 20, 1907, when plaintiff was paid in full for purchases previously made, and hence it is impossible to determine what lumber Avent into Ware’s houses after that date and what went into Powers’ houses. If we grasp the argument, the idea of counsel is this: Perchance all of certain kinds of materials contained in the present lien account, say transoms or hand rails, which the Ware houses required, had been furnished to and placed in them prior to April 20th, so that all those articles furnished by plaintiff subsequent to said date went into Powers’ houses. This contention is opposed to the uniform testimony on the question, for Ware testified he made out a list of the different items of material used in his houses and
When Ware looked through his houses in order to ascertain Avhat lumber furnished by plaintiff after April 20th had gone into them, he made a list in his memorandum or “time book,” as he called it, and was permitted by the court to use said list to refresh his memory AArhile on the witness stand. This ruling is assigned for error, it being argued that as the list was not made at or near the date when the material was placed in the houses, it could not be used by the witness to refresh his memory. Ware testified as though he knew at sight every bit of material purchased from plaintiff and ascertained the dimensions by actual measurement. He could not retain the fifty-five or more items in his mind, the number of pieces of each kind of lumber and their dimensions, and without a memorandum would have been unable to testify with certainty. The fact which made the memorandum a proper paper for him to refresh his memory from Avas, that it was made when he Avent through the houses to ascertain the material bought of plaintiff and used in them. If he had Avaited so long-after the inspection before listing the items as to render it unlikely he Avould remember them correctly, the fact might give force to the objection of counsel for defendant. [1 Greenleaf, Evidence (Lewis Ed.), sec. 438.]
It is insisted only fourteen of the dray tickets were introduced, and as there were thirty-one loads of lumber and the same number of dray tickets, the jury were left-in the dark as to the contents of seventeen of the loads. Counsel are under a mistake of fact about this matter. The deposition of a witness named Gorg had. attached to it fourteen dray tickets and these were offered in connection with his deposition, but the record shows elseAvhere counsel for plaintiff introduced other draj
Counsel for defendant say the payment of $837.81 in the settlement of plaintiff’s account against Ware on April 20th, was directed by Ware to be applied to pay for material furnished for his (Ware’s) houses; wherefore plaintiff had no right to apply it otherwise, and that if applied as directed, it would pay for all the material used in Ware’s houses, including what was furnished subsequent to as well as that furnished before the date of payment. In the order Ware gave to the McCormickKilgen-Rule Company on April 26th, he directed them to pay plaintiff company $837.81 “on my building.” Counsel contend this was an explicit direction to apply the whole sum in payment for the lumber for the buildings owned by Ware individually, instead of applying it generally for lumber furnished for the four buildings. This theory must fail as inconsistent with the rest of the order and the condition of the account against Ware at the time; for the object of the payment was rather to protect Powers from a iien on the houses and lots he wotdd keep, and he had refused to convey the other lots to Ware until he was protected. Ware did not use the word “buildings” but said “my building,” meaning, we think, the building work in progress on Maffit avenue. Indeed the order directed the payment to be made according to the contract “for lumber to Maffit avenue.” The defendants are interested in the two loans made on the Ware lots a few days after this payment, and if they were misled by plaintiff’s order, might have set that up as an estoppel against the present lien, but no estoppel was pleaded; yet the court submitted the defense to the jury. The instruction upon it was that if the jury found plaintiff received payment from the McCormick-KilgenRule Company on Ware’s order, and further found plaintiff accepted the payment on said order knowing Ware only owned the houses on Maffit avenue described in the petition, and that the MeCormick-Kilgen-Rule Com