Gerard B. Allen & Co. v. Frumet Mining & Smelting Co.

• Decision Date: 30 April 1881
• Citation: 73 Mo. 688
• Court: Missouri Supreme Court
• Parties: GERARD B. ALLEN & CO., Appellant, v. THE FRUMET MINING & SMELTING COMPANY.

73 Mo. 688

GERARD B. ALLEN & CO., Appellant,

v.THE FRUMET MINING & SMELTING COMPANY.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Jefferson Circuit Court.--HON. LOUIS F. DINNING, Judge.

REVERSED.

Given Campbell for appellant.

(1) The articles furnished and work done on the furnace, which was outside of the acre of land described in the lien, were separately itemized, so that they were distinctly picked out; and neither the court nor the trustee were misled. The plaintiff acted in good faith, supposing that all the buildings were on the acre described. (2) The course of dealings between the parties was such as to constitute the account an open and continuous running account. Pulling Mercant. Contr., § 30; McWilliams v. Allan, 45 Mo. 573; Madison Coal Co. v. Steamboat Colona, 36 Mo. 446; Ring v. Jamison, 66 Mo. 428; Porter v. Spencer, 2 Johns. Ch. 169; Smith v. Marks, 2 Rand. 449; Sheppard v. Wilkins, 1 Ala. 62; Goodwin v. Harrison, 6 Ala. 438. The firm of Allen & Co. assigned its account as a running account to the plaintiff, and had a right to do so. Jones v. Hurst, 67 Mo. 568. (3) The account being continuous related back to the first item, and thus ante-dated the deed of trust to Obear. This gives plaintiff a prior lien to Obear. Reilly v. Hudson, 62 Mo. 386; Wag. Stat., 908, 909, §§ 3, 7; Douglas v. St. Louis Zinc Co., 56 Mo. 388. (4) Allen & Co. applied the payments which were made by Einstein & Co. to the discharge of the item of $3,735, which was furnished under the special contract of January 1st, 1871. This they had a right to do, neither Einstein & Co. nor the defendant having ever directed otherwise. Gantner v. Kemper, 58 Mo. 570; Waterman v. Younger, 49 Mo. 413; McCune v. Belt, 45 Mo. 174. (5) The items for repairs are covered by the lien law. Reilly v. Hudson, 62 Mo. 387. (6) Again, it was shown by the evidence that the bond creditors, in June, 1874, had notice of the lien claim and account of plaintiff, and urged the continuance of the same. Obear, the trustee, must have known of these facts. Where a party claiming an interest in land lies by for a number of years, and sees it enhanced in value and improved by the labor and expenditures of others, the courts will not listen favorably to his demands. McNees v. Swaney, 50 Mo. 392; Landrum v. Union Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515; Evans v. Snider, 64 Mo. 518.

R. E. Rombauer and Geo. W. Taussig for respondent, Obear.

Plaintiff cannot recover against defendant, Obear, who occupies the position of an intervening mortgagee for value. (1) Because the work was not done under one contract, but under several distinct contracts, ( Livermore v. Wright, 33 Mo. 31,) and the account was not filed within six months from the time that the indebtedness accrued on each. (2) Because the plaintiff's account is not just and true, but is untrue and oppressive to plaintiff's own knowledge. Hoffman v. Walton, 36 Mo. 613. (3) Because a great part of the items embodied in the account were neither furnished for nor entered into the premises sought to be charged with a lien. Simmons v. Carrier, 60 Mo. 582; Fitzgerald v. Thomas, 61 Mo. 499; Fitzpatrick v. Thomas, 61 Mo. 512. (4) Because the items set out in the plaintiff's account cannot, under the evidence, as a matter of law, constitute an account running. Phillips on Mech. Lien, § 289; Miller v. Hershey, 59 Pa. St. 64, 69; Phillips v. Duncan, 3 Am. L. Reg. (O. S.) 304; Updike v. Skillman, 27 N. J. L. 131; Norris' Appeal, 30 Pa. St. 122; Choteau v. Thompson, 2 Ohio St. 114; McCree v. Campion, 5 Phil. 9. (5) Because the plaintiff mixed in the same account, charges for materials and work, for which a lien is given by law, with charges for work and material, for which no such lien is given or can exist. Edgar v. Salisbury, 17 Mo. 271; McMaster v. Merrick, 41 Mich. 505. (6) Because the charges in the account for which a lien is given--April 4th, 1871, and July 23rd, 1873--are so indefinite that it is impossible to determine “how much of such items is comprehended in each,” etc. Edgar v. Salisbury, 17 Mo. 271; McWilliams v. Allan, 45 Mo. 575. (7) Because the petition avers one general contract, and the proof shows several special and distinct contracts. (8) Because the account is kept with and credit given, intentionally and knowingly, to Wm. Einstein & Co., from first to last, and never to the owner, the Frumet Mining & Smelting Company, and plaintiff took judgment for the balance against Einstein and Mandle. (9) Because in one count plaintiff alleges three contracts between three different parties--1st, Allen & Co., partnership, and Einstein & Co.; 2nd, Allen & Co., corporation, and Einstein & Co., and 3rd, Allen & Co., corporation, and Frumet Mining & Smelting Company.

HOUGH, J.

This was a suit to enforce a mechanic's lien for the sum of $6,802.80, alleged to be the balance due on an open running account extending from February 2nd, 1871, to August 23rd, 1875. The dealings represented by this account were originally had between Gerard B. Allen & Co. and Wm. Einstein & Co. Allen & Co. were engaged in the manufacture of iron work and machinery in the city of St. Louis, and Einstein & Co. were about to engage in the business of reducing lead ores, and for that purpose had erected buildings on their property at Frumet, Missouri, in connection with which they required a variety of machinery and fixtures, which Allen & Co. agreed to furnish them from time to time On the 13th day of April, 1871, the firm of Gerard B. Allen & Co. became incorporated under the corporate name of Gerard B. Allen & Co., and said corporation succeeded to all the property, rights and credits of the firm of Gerard B. Allen & Co., and assumed all its liabilities. In other words, the business of the firm was continued by and in the name of the corporation, without interruption or change. On the 3rd day of June, 1872, Wm. Einstein & Co. became incorporated under the name of the Frumet Mining & Smelting Company. Said corporation in like manner succeeded to all the property, rights and credits of the firm of Einstein & Co., and assumed all its liabilities, and the account sued on was continued between the successors of the original parties thereto, as if there had been no change in the legal status of either. On July 1st, 1872, the Frumet Mining & Smelting Company executed to the defendant, Obear, as trustee, a deed of trust on the land sought to be charged with a lien, to secure certain bonds issued by said company. The circuit court rendered judgment for the balance claimed to be due, but refused to declare it to be a lien on the property sought to be charged, and the plaintiff has appealed.

1. MECHANIC'S LIEN.

One objection made to the account as a lien, is, that it contains items for repairs. We think these items fairly come within the understanding or implied agreement of the parties that the plaintiff would furnish whatever should be required in the way of fixtures and machinery for the works at Frumet. The statute expressly allows a lien for repairs, and a running account like the one before us might very properly include such additions, improvements or repairs as should from time to time be needed in connection with the works.

2. ______: deed of trust.

The account filed seems to have included all the transactions between the parties, and it contains an item of $3,735 for machinery furnished under a special contract dated April 4th, 1871. But this item was extinguished by payments made before the execution of the trust deed. The debtors not having made any application of their payments at the time of making them, they were applied by the plaintiff to the oldest items of indebtedness.

3. ______: error in account filed.

A number of items in the account filed aggregating $1,779, were not furnished for any building or other improvement on the acre of land described in the lien; but for a furnace situated beyond the limits of said acre, and for a track connecting it with the works. The testimony, however, clearly shows that this was the result of inadvertence and mistake as to the location of the furnace at the time of filing the lien, and not of any desire or intent to defraud; an innocent mistake of this character should not, in our judgment, invalidate the whole lien, especially where no one has been injured by the mistake, and the items are easily separable from...