Grace v. Nesbit

• Decision Date: 02 March 1892
• Parties: GRACE v. NESBIT et al.
• Court: Missouri Supreme Court

18 S.W. 1118

109 Mo. 9

GRACE v. NESBIT et al.

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

MATERIAL-MAN'S LIEN — ACCOUNT — NOTICE — PLEADING — EVIDENCE.

1. The omission from a petition in an action to enforce a lien for materials of the allegation that the materials went into the construction of the improvement is cured by the averment of the answer that the materials were not used in the construction of the building.

2. Under Rev. St. 1879, § 3176, relating to mechanics' liens, and requiring that there shall be filed "a just and true account of the demand due * * * after all just credits have been given," and section 3190, requiring that a notice be given the owner that the lienor "holds a claim against such building or improvement, setting forth the amount and from whom the same is due," it is sufficient that there be one account filed and one notice given, though the material was furnished under more than one contract.

3. Where a contractor purchases materials for a building in a lump for an entire price, and this appears by the account filed by the lienor, it is not necessary that the account, to be "just and true," place a value on each item, but it is sufficient that the items be specified and the lump price given.

4. Under Rev. St. 1879, §§ 3190, 3192, providing that the notice of lien be served on every person for whose immediate use, enjoyment, or benefit the building shall be made, his agent or either of them, service on one who held the title as trustee for himself and another, who signed the building contract as trustee, and who supervised the construction, is sufficient, his acknowledgment of service reciting that it was for himself and the other.

5. In an action by a subcontractor for judgment against the contractor, and to enforce a lien against the property of the owners, declarations of the contractor, made after the purchase and delivery of the material, are admissible against him, though not against the owners.

Appeal from circuit court, Livingston county; JAMES M. DAVIS, Judge.

Action by James A. Grace against J. Y. Nesbit and others. Judgments for plaintiff. Defendants appeal. Affirmed.

Frank Sheetz, for appellants. Waite & Johnson, for respondent.

MACFARLANE, J.

This is a suit for judgment against the contractor, and to enforce a mechanic's lien against the property of the owners, for the value of lumber, lime, and other material furnished the contractor by plaintiff, and used in the construction of a business house on a lot in the city of Chillicothe. The suit is against J. Y. Nesbit, as contractor and purchaser of the materials, and Smith, McVey & McKee, as owners of the lot and building. The petition contained two counts. The first was for a special bill of lumber and lime, for which a charge in bulk, of $2,800, is made. The items of all the materials are given in detail, but no prices are fixed to the several items. On this account plaintiff applied credits amounting to $2,795.65, which left an unpaid balance of only $4.35. The second cause of action is based on a running account for material, the value of each item being stated in the account, except in three instances, — one for a number of doors, windows, and sashes, the articles being itemized, but the values placed in the aggregate at $440; the second was for yellow pine bars, casings, and mouldings, giving the items of each, $255; and the third for another itemized account for doors and windows, $260. The second count in the petition fails to charge, in terms, that the materials so furnished by plaintiff were used in the construction of the building. It does charge that Nesbit, the contractor, applied to plaintiff for lumber and material with which to construct the building, and agreed to pay the value of all such lumber and material as plaintiff might furnish and supply for the construction of such building; and pursuant to such agreement he did, from time to time, furnish to said Nesbit lumber and material to be used in the construction of said building, of the value of $3,194.06. Defendants Smith and others, owners of the property, answered over, without objection, to the petition, by demurrer or otherwise. In one part of the answer they deny that the material was used in the construction of the building, and in a special defense they charge that the account is fraudulent and wrongful "in this: that the lime, lumber, laths, and other material therein mentioned, or a great part thereof, was not furnished and used in the construction of said building." Upon a trial to the court, without a jury, a judgment was rendered for plaintiff against Nesbit for balance claimed on the accounts, and a decree against the property enforcing the lien, and the owners appealed.

1. On the trial objection was made by the defendant owners to the introduction of any evidence under the petition, for two reasons. The first was that it did not appear from the petition that the material specified in the account was used in the construction of the building. It is well-settled law in this state that no lien for the value of materials can be acquired, unless they go into the construction of the improvement, and that fact becomes a necessary averment of the petition. It is also a well-settled rule of practice that the omissions or other defects of the petition may be cured by the subsequent pleading of the adverse party. We think, in this case, that the aid given the petition, by the averments in the answer, fairly formed an issue, under the pleadings, as to whether or not the materials furnished by plaintiff were used in the construction of the building. That issue was tried, and complaint now comes too late. Defendants must be consistent, and abide the result of an issue they aided in making. Big. Estop. 717; Hughes v. Carson, 90 Mo. 399, 2 S. W. Rep. 441; Garth v. Caldwell, 72 Mo. 622.

2. The second objection urged as ground upon which the introduction of testimony, under the petition, should have been denied, was that "the petition counts on separate and distinct contracts, and alleges but one notice and lien." The counts of the petition show that the material specified in the two counts was furnished by plaintiff to the contractor under distinct and independent contracts or arrangements, so much so that it was necessary to declare on the accounts as independent causes of action in different counts. Only one lien account was filed, but it covered all the items of material included in the two counts. Only one notice was given to the owners of the property that plaintiff held a lien against it, but that notice included a copy of the whole lien account as filed. There is no provision of the statute requiring a separate account to be filed for each separate contract under which material may have been furnished, though the material may be entirely different and the contracts independent. The statute (Rev. St. 1879, § 3176) requires the account filed to be "a...