KAISER ALUMINUM & CH. SALES v. Hartford Acc. & Ind. Co.

• Decision Date: 04 January 1954
• Docket Number: No. 7397.,7397.
• Court: U.S. District Court — Western District of Missouri
• Parties: KAISER ALUMINUM & CHEMICAL SALES, Inc. v. HARTFORD ACCIDENT & INDEMNITY CO.

117 F. Supp. 471

KAISER ALUMINUM & CHEMICAL SALES, Inc. v. HARTFORD ACCIDENT & INDEMNITY CO.

No. 7397.

United States District Court W. D. Missouri, W. D.

December 14, 1953.

Supplemental Opinion January 4, 1954.

Ira K. Witschner, Charles V. Garnett, Kansas City, Mo., for plaintiff.

Clifford B. Kimberly, Kansas City, Mo., for defendant.

REEVES, Chief Judge.

The question for decision in this case has been submitted on an Agreed Statement of Facts. The plaintiff furnished specified materials to Pendleton Construction Company, a corporation, doing business as a corporation of the State of Oklahoma. Such materials were sold by plaintiff for the use by the purchaser "in the performance of its general contract with Cooperative Power & Light Company at Iola, Kansas, for the construction of certain power lines * *."

The materials furnished aggregated $21,168.30, as indicated in the invoices set out in the Agreed Statement of Facts. There was a supplemental charge, not for material, entitled "Reels Chgd." in the sum of $1,161.

The defendant became a conventional surety on behalf of the purchaser or contractor. There was a default in the payment of the account for materials furnished and the defendant tendered the sum of $21,168.30, the exact amount of the invoices for materials furnished, and not including interest. This tender was made long after the accounts matured and after default in their payment was made by the purchaser.

The plaintiff rejected the tender because it did not include the sum of $30 for reels not returned by the purchaser. The reels were used for packaging the materials shipped, and for other purposes. They were returned, save a quantity amounting in value or charge to $30. Apparently it is the contention of the defendant that, since there was a controversy over the charge for reels, the whole account remained unliquidated and that it is not liable for interest.

1. An examination of the invoices set out in the Agreed Statement of Facts shows that the reels were not charged as materials to be used in the project but it was a mere charge and, as explained in the Agreed Statement of Facts, the reels were in the nature of packaging items for the shipment of materials and were not used in any definite way in the construction project. As stated, reels valued at $1,131 were returned, leaving a balance unpaid on the charge, of $30. It is apparent that neither the plaintiff nor the defendant as surety treated the reels as part of the materials subject to its suretyship.

2. On the subject of Mechanics' Liens, in 57 C.J.S., § 44, pp. 535, 536, it is said:

"Generally a lien may be acquired for materials which, although not incorporated in the building or improvement, are used in the construction and, by their use, are actually or practically consumed, wasted, destroyed, or rendered worthless or unfit for further use." (Emphasis mine.)

In this case the reels were not used in such way as to destroy them but, on the contrary, with negligible exception, all were returned to the seller. 57 C.J.S., Mechanics' Liens, § 45, p. 538,...