Simmons, Garth & Co. v. Carrier

• Decision Date: 31 October 1875
• Citation: 60 Mo. 581
• Parties: ^a1SIMMONS, GARTH & CO., Respondents, v. MILO CARRIER, et al., Appellants.
• Court: Missouri Supreme Court

60 Mo. 581

^a1SIMMONS, GARTH & CO., Respondents,

v.MILO CARRIER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Henry Circuit Court.

LaDue & Fyke, for Appellants.

McBeth & Price, for Respondents.

HOUGH, Judge, delivered the opinion of the court.

This was an action brought by plaintiffs, under the statute in relation to mechanics' liens, against Milo Carrier as contractor and Hannah W. Roberts as owner of the premises sought to be charged with the lien, and John Roberts, her husband, to recover the sum of $1,228.06 for materials furnished by plaintiffs to said Carrier, for the erection of a store house for the defendant, Hannah Roberts on said premises, and to enforce a lien thereof. The petition contained all the necessary averments.

Mrs. Roberts and her husband answered, denying that the quantity and value of the materials furnished were as alleged; denying the filing of any lien, and averring that the account filed with the clerk was not a just and true account; that plaintiffs had intentionally failed to give all just credits to which defendants were entitled; that all the materials furnished by plaintiffs to Carrier were not used in the building of defendant Roberts, and that the plaintiffs and the defendant Carrier, had colluded to cheat and defraud the defendant Roberts. Plaintiffs replied denying these allegations. Carrier made no defense. The jury returned a verdict for plaintiffs for the sum of $780.40, and found the same to be a lien upon the premises described in the petition.

At the trial the defendants objected to the introduction in evidence of the statement filed as a lien, for the reason that it was not stated therein who was the owner of the building against which the lien was sought to be enforced, nor who was the contractor. The objection was overruled, the lien admitted, and defendants excepted. The statement filed as a lien consisted of an itemized account of the lumber and materials furnished to Milo Carrier for John and Hannah Roberts, and an affidavit of said Carrier that he bought said materials as contractor for the erection of a store house on the lot described in the petition for his co-defendants, and that the same was used by him in said building; also an accurate description of the premises signed by Samuel D. Garth & Co., and an affidavit of Samuel D. Garth that the account was just and true after allowing all just credits, and that Hannah W. Roberts was owner of the lot and building described, and that the same was duly described, and that the account accrued within four months. The whole statement taken together contained everything required by the statute, and though not as formal as it might have been made, was certainly sufficient and was properly admitted in evidence.

The testimony was conflicting as to the quantity of materials used in the construction of the building, and also as to the amount of the payments made on the account filed. The verdict of the jury is conclusive on these points, if it shall be found that the case was submitted to them under proper instructions. Among others the following instruction was given for the plaintiff. “The court instructs the jury that it is not necessary for the plaintiffs (to entitle them to a lien) to prove that the lumber furnished was actually used in the construction of the building; it is sufficient in the absence of collusion or fraud, that the lumber was furnished for the purpose of being used in the building.”

Among the instructions given for the defendants was the following: “The court instructs the jury that before you can find for plaintiffs in any sum in this cause against said Hannah and John Roberts, you must believe from the evidence that Simmons, Garth & Co. furnished to Milo Carrier lumber and material to be used in the construction of said building; and that said lumber and material was used in the construction of said building, and that said lumber and material, or some portion thereof, remains unpaid for.”

These instructions are diametrically...