18 Mo.App. 497 (Mo.App. 1885), Henry v. Hinds

Citation:18 Mo.App. 497
Opinion Judge:PHILIPS, P. J.
Party Name:ROBERT L. HENRY ET AL., Respondents, v. E. F. HINDS and FANNY G. RICE.--FANNY G. RICE, Appellant.
Attorney:JAS. F. MISTER, for the appellant Rice. W. J. STRONG, for the respondents.
Case Date:June 15, 1885
Court:Court of Appeals of Missouri
 
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Page 497

18 Mo.App. 497 (Mo.App. 1885)

ROBERT L. HENRY ET AL., Respondents,

v.

E. F. HINDS and FANNY G. RICE.--FANNY G. RICE, Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, J.

Reversed and remanded.

Statement of case by the court.

This is an action to enforce a mechanic's lien. The petition alleges in substance, tat the defendant, E. F. Hinds, is indebted to plaintiffs in the sum of $760.96 for materials furnished by them at the request of and under a contract with said Hinds. The petition then sets out the account in full, beginning on the 20th day of July, 1881, and ending on the 2d day of March, 1882, aggregating $1,930.92, with credits amounting to $1,169.96, leaving a balance of $760.96. That said materials were furnished for and used in the construction of a certain building on the lot of defendant, Fannie G. Rice, situate in Kansas City, Missouri; and that said Hinds was the original contractor with said Rice for the erection of said building; that said demand became due on the 2d day of March, 1882, and within four months thereafter the plaintiff filed said account in the proper clerk's office for the purpose of securing a lien on said building, to-wit: on the 11th day of May, 1882, duly verified and describing said property; that more than ten days prior to filing said account the plaintiffs gave notice to said Rice of said demand. The prayer is for judgment against said Hinds for the debt and for the foreclosure of the lien.

Hinds made default. The defendant Rice made answer, denying any knowledge of the existence of the alleged partnership between the plaintiffs, or the existence of said debt against Hinds, or whether the said materials were furnished by plaintiffs, or were used in the building. It then admitted that said Hinds was the original contractor with her for the erection of said building, and that she is the owner of the property described in plaintiffs' petition, and defendant admits that plaintiffs filed an account of their claim as alleged, and served a notice of their claim prior thereto, as is alleged in the petition. But the defendant states that plaintiffs are not entitled to the enforcement of their alleged lien against the aforesaid property, because she says that the said Hinds was the original or principal contractor with her for the erection of said building and improvements, and was the lowest and best bidder therefor at the price of $13,800; and if any labor or materials were furnished to said Hinds by plaintiffs, or used in said building and improvements, said materials were furnished said Hinds upon his own credit, and upon his sole responsibility; and that he alone was looked to for payment by plaintiffs, and that payments have been made therefor by said Hinds and placed to his individual credit by plaintiffs without the knowledge, consent, authority or intervention in any manner by this defendant; and that plaintiffs did not look to said building as security for said materials, but to the credit of defendant Hinds.

For a further answer and defence, defendant says that at the date of the service of said notice of claim by plaintiffs, and at the date of filing of said account thereof, to-wit: About the 14th day of February, 1882, and without any knowledge or notice whatever of the existence of any claim of the plaintiffs against said building or otherwise, this defendant had paid to said Hinds the full amount due and payable to him under said contract; and that nothing whatever was due or owing from this defendant to said Hinds at the date of said serving of notice and filing of claim as aforesaid, or either of them.

And for further answer and defence, defendant says that the whole of the contract price for said building and improvements, so paid to said Hinds as aforesaid, was paid out and applied by said Hinds exclusively towards the payment and satisfaction of claims of sub-contractors and material men and day laborers furnishing work, labor and materials in the erection of said building and improvements, and that no part thereof was otherwise applied by said Hinds, and that no part thereof was retained by him for his own work and services on said building, but the whole amount thereof was paid to plaintiffs and others to the extent of the contract price for said building and improvements aforesaid. Wherefore defendant prays judgment that her property is not liable to be charged with the alleged claim, and for judgment accordingly, and for her costs.

The reply tendered the general issue.

The evidence on behalf of plaintiffs tended to prove the allegations of the petition; and the evidence on behalf of the defendant tended to prove the matters pleaded in the answer hereinafter discussed.

The contract between Hinds and Miss Rice was in writing, by which Hinds was to furnish all the materials and do all the work, and complete the building by the first day of December, 1881. The work, etc., were to be paid for in installments as the same progressed, leaving a balance of $3,300 unpaid, which was to be paid on the completion of the building and its acceptance by the architect. The aggregate cost of the building was $13,800.

The cause was tried before a jury.

At the request of the plaintiffs the court declared the law as follows:

" It is admitted in the pleadings in this cause that the defendant Hinds was the contractor with the defendant Rice for the construction of the buildings mentioned in the pleadings; that defendant Rice is the owner of the property in question, and that the plaintiffs on the 11th day of May, 1882, filed an account with the clerk of the circuit court, as alleged, and that the plaintiffs served notice of their claim prior thereto, as alleged in the petition. If you find from all the evidence in this cause, that Henry, Barker & Coatesworth, by written contract with defendant Hinds, sold to said E. F. Hinds, the lumber and materials mentioned in the petition, to be used in the construction of the building and appurtenances specified in the pleadings; that said lumber and materials were actually used by said Hinds in the construction of said building and appurtenances under the contract between him and defendant Rice, read in evidence, and under additional agreement between them for extra work; that the lien filed with the circuit clerk was filed within four months after the indebtedness accrued; that Barker ceased to be a member of the firm of Henry, Barker & Coatesworth before all the material had been furnished, and these plaintiffs, by assignment from said Barker, became entitled to his interest in the lumber and material before that time furnished, and that these plaintiffs constitute the firm of Henry Brothers & Coatesworth, then the plaintiffs are entitled to have and recover the reasonable and fair value of all the materials so sold and actually used in the construction of said building and appurtenances, less all credits and payments made thereon, and they are also entitled to have their mechanic's lien enforced thereon. The date of the accruing of the account will be the date that the last item of lumber was actually furnished.

The court instructs the jury, that the fact that Fannie G. Rice paid to the defendant Hinds the full amount due on her contract with him for the erection of the building and appurtenances described in the plaintiffs' petition, does not affect the plaintiffs' right to recover in this case.

The court instructs the jury that plaintiffs are entitled to interest on the amount due them from the defendant Hinds from the date they made demand on said Hinds for the same, at the rate of six per cent. per annum to date."

The defendant made request, but the court refused to give the following instructions to the jury:

" 1. That if they shall believe from the evidence that plaintiffs furnished the materials sued for, in the amount and for the purposes stated in the petition to defendant Hinds, and that they were used, as is...

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