APPEAL
from the Jackson Circuit Court, HON. TURNER A. GILL, J.
Reversed and remanded.
Statement
of case by the court.
This is
a suit brought by plaintiffs to recover judgment against
James G. White and James O'Connor, for hardware furnished
them, and to enforce a mechanic's lien against a certain
building of appellants, Rozzelle & Spiker, in the
construction of which it is alleged said hardware was used.
This
suit was instituted before a justice of the peace, who, on
the trial thereof, rendered judgment against White &
O'Connor for the amount of plaintiff's demand and for
the enforcement of mechanic's lien for the same against
the building of Rozzelle & Spiker. Rozzelle & Spiker
duly appealed from the judgment of the justice sustaining the
lien, but White & O'Connor did not appeal from the
judgment of the justice against them. The circuit court on
the trial of said cause rendered a judgment in favor of
plaintiffs and against White & O'Connor for the
amount of plaintiffs' demand, and for the enforcement of
a mechanic's lien for said amount against the said
building of Rozzelle & Spiker. From that judgment Rozelle
& Spiker have appealed to this court.
In the
circuit court the plaintiffs made an application for a
continuance of the case on account of the absence of one of
their witnesses, whereupon it was admitted by the appellants
that had said absent witness been present his testimony would
have been as follows:
" That White & O'Connor were the contractors of
Rozzelle & Spiker for the erection of said building
described in the complaint; that the materials mentioned in
the account filed with said complaint, were furnished White
& O'Connor for the purpose of being used in the
construction of said building, and were used in the
construction of said building, and that the price charged for
said materials was the market value of the same; that the
building was owned by the said Rozelle & Spiker, and that
they had due and legal notice of plaintiffs' intention to
claim a lien on said property."
Thereupon
the parties proceeded to trial, the above admission being
considered as the testimony of the absent witness. In
addition to said admission the plaintiffs introduced in
evidence the account sued on, which was as follows:
P. P. BURROUGH,
KANSAS
CITY, Mo., April 1, 1882.
Messrs. White & O'Connor, for house Balt
Ave., 9th and 10th St.,
Bought
of Burrough Bros.
|
Dec. 1
|
2 prs. 4x4 Butts
|
60
|
|
2 prs. 3 1/2x3 1/2 Butts
|
30
|
|
6
|
10 lbs. 10 case nails
|
50
|
|
27
|
8 lbs. 8 case nails
|
40
|
|
28
|
3 lbs. 8 case nails
|
15
|
|
18 sets transom fixtures
|
2 16
|
|
Dif. in Hem. knobs and S. L. locks
|
1 50
|
|
July 2
|
1 lock and knob
|
35
|
|
July 11
|
Dr. in difference in lock exchange
|
5 00
|
|
Dr. in difference in sash exchange
|
50
|
|
17
|
Dr. in difference in slide door lock exchange
|
3 00
|
|
26
|
1/2 doz. window springs
|
10
|
|
31
|
1/2 doz. Hemenite escutcheons
|
60
|
|
Cr. January 26th by cash
|
35 00
|
To the
introduction of which account defendants objected "
because the same is incompetent, irrelevant and is only an
itemized balance," which objection the court overruled.
To which ruling of the court, defendants then and there
excepted.
F. F.
Rozzelle being duly sworn, testified as follows:
" Mr Spiker and myself contracted with White &
O'Connor to build the house mentioned. We were to pay
them $4,356.00 and they were to complete the house and
furnish everything. Mr. Bannon was our architect and looked
after the building, and we paid the bills on the order of
White & O'Connor. The materials were paid for by
check made payable to the order of the party furnishing the
same. We made two payments to these plaintiffs in this way.
They presented us an order from White & O'Connor at
the time we made the first payment for $37.00 for hardware
furnished Baltimore Avenue house (the building mentioned in
the complaint), and we gave them our check payable to their
order. The check contained the memorandum that it was on
account of hardware furnished Baltimore Avenue house.
Don't know whether it was payment in full or not. The
payment was made about the time this account purports to
commence. There is no credit given in the account for
this payment. There never was any settlement made with us, or
any account or statement furnished us by plaintiffs of
hardware furnished this building. Don't know how much or
what kind of hardware they did furnish. It was all furnished
for one building. Plaintiffs simply brought us an order from
White & O'Connor, on account of hardware, for such
money, but did not state what kinds or how much, and we paid
the order. The payment for which they have given us credit
was made in exactly the same way. The second payment was for
$35.00."
E. P.
Burrough, one of the plaintiffs, testified in the
justice's court below, on the trial of this cause, "
that they never had any contract with White &
O'Connor, but furnished all the hardware on a running
account, and charged them the market value."
Cross-examination: " There was no settelement
of the account between plaintiff and White & O'Connor
at the time the first payment was made that we know of. There
was no settlement or statement of account between plaintiffs
and us. The account filed in this suit is simply an itemized
balance. All that Mr. Bannon had to do was to see that the
house was built right. He had nothing to do with paying White
& O'Connor, or paying for materials."
Said
witness, E. P. Burrough, swore on the trial before the
justice that all the goods bought prior to the account sued
on, were paid for in full by the payment of said $37.00, and
the account upon plaintiffs' books balanced, and the
account sued on shows all items and all credits thereafter.
This
was...
