Badger Lumber Co. v. W. F. Lyons Ice & Power Co.

• Citation: 160 S.W. 49,174 Mo. App. 414
• Court: Court of Appeal of Missouri (US)
• Decision Date: 06 October 1913
• Parties: BADGER LUMBER CO. v. W. F. LYONS ICE & POWER CO. et al.

160 S.W. 49

174 Mo. App. 414

BADGER LUMBER CO. v. W. F. LYONS ICE & POWER CO. et al.

Kansas City Court of Appeals. Missouri.

October 6, 1913.

Rehearing Denied November 3, 1913.

1. APPEAL AND ERROR (§ 1011)—MECHANICS' LIENS (§ 288)—REVIEW—VERDICT—FINDINGS—CONCLUSIVENESS.

Where the evidence is conflicting as to whether the last items of material for a building were furnished under the same or a different contract than the first items, or where different inferences might be drawn from the circumstances, the question is one for the jury or

the trial court, whose finding cannot be reviewed if supported by any evidence.

2. APPEAL AND ERROR (§ 842) — REVIEW — QUESTIONS OF LAW—CONSTRUCTION OF CONTRACT.

Where the undisputed evidence shows what the contract for materials was, and that the materials were furnished according to the contract, the question whether the contract is entire or separable is one of law, which may be reviewed on appeal.

3. MECHANICS' LIENS (§ 132) — RIGHT TO LIEN—ENTIRE CONTRACT FOR MATERIALS.

Under Rev. St. 1909, § 8212, providing that materials for which a lien is claimed must be furnished under a contract with the owner, a materialman is entitled to a lien for all items sold under one contract, although they were furnished at different times, and rendered necessary by different conditions.

4. MECHANICS' LIENS (§ 132)—CLAIM—TIME FOR FILING—"RUNNING ACCOUNT."

A running account, which is a mutual account between buyer and seller, in which was charged from time to time, as ordered, the materials sold, and on which was entered the various credits to which the seller was entitled, by reason of payments made and articles returned, is deemed an entire account, and, for the purpose of fixing the time for filing the account to perfect a mechanic's lien, each item of the account relates to the last item delivered— quoting Words and Phrases, p. 6277.

5. MECHANICS' LIENS (§ 132)—CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

The fact that materials sold under separate and distinct contracts were all charged in the form of a running account would not make them lienable under one contract; but, unless there is evidence of a separate contract for the different items, the account would be taken to be a running account under the contract out of which the account originally grew.

6. MECHANICS' LIENS (§ 132)—CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

Where materials were furnished as required without a specific agreement as to the time within which they were to be furnished, and all formed parts of a connected whole in the building for which they were furnished, and there was nothing to indicate that the work was completed, so as to lead the materialman to believe the account was ended, and no further material required, he is entitled to a lien as under the entire contract.

7. MECHANICS' LIENS (§ 132)—CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

Where it is specially or impliedly agreed between the parties that an account is to be kept open as one continuous transaction, the fact that the furnishing of articles may have extended over a long period, or that several months elapsed between two of the items of the account, does not prevent a lien for all the items as being furnished under one contract.

8. MECHANICS' LIENS (§ 132)—CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

Materials furnished after the substantial completion of a building, but necessary to the comfortable and proper use thereof, and not furnished for the mere purpose of preserving a lien, are sufficient to preserve the right to a lien for all the materials, where the rights of third parties have not intervened.

9. MECHANICS' LIENS (§ 132)—CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

A lumber company orally agreed to furnish the material for the construction of an ice-making and meat-packing plant; no reference being made to the plans or specifications. A list of the materials was furnished; but it was understood that it was not complete, and that other materials would be ordered as needed. As the materials were furnished, they were charged to the ice company, and occasionally payments were made on the account. Prior to the completion of the plant, the company moved into it, and began operations; but the lumber company continued to supply materials for the construction. Thereafter the ice company suspended packing, but continued to make ice, and for five months no materials were called for; but the account was not closed, although the lumber company requested that payments be made. The ice company leased the packing portion of its building to another company, which desired the finishing of certain incomplete rooms in the building. The packing company ordered the materials therefor from the lumber company; the materials being the same as would have been required under the original plans. No new contract was expressly made between the two companies, and the charges for materials were entered upon the existing account. Held, that the furnishing of such materials was under the same contract, and not under a new one, and the lumber company had a right to a lien for all materials furnished under a claim filed within six months of the time of the furnishing of the last items.

10. MECHANICS' LIENS (§ 132) — CONTRACT FOR MATERIALS—ENTIRE CONTRACT.

The fact that at the time the last materials were ordered the packing company, without any demand by the lumber company, paid cash for other materials which were not shown to have been used for the completion of the original building does not indicate that a new contract was entered into for the materials to be used in finishing the building.

11. EVIDENCE (§ 471) — ACTIONS TO FORECLOSE—WEIGHT OF EVIDENCE—CONCLUSIONS OF WITNESS.

Testimony by a carpenter who ordered the materials that the manager of the lumber company understood that the materials were to be cash was a mere conclusion which did not warrant a finding that a new contract was made, especially where the carpenter was not authorized to contract for the materials, but merely to order them.

12. MECHANICS' LIENS (§ 132) —ACTIONS TO ENFORCE—WEIGHT OF EVIDENCE—SEPARATE CONTRACT.

A remark by the manager of the lumber company, when told by the carpenter that the materials needed for the alterations were to be cash, that the ice company owed quite a bill, and his firm did not want to extend it, was not a demand that a different contract be made.

13. MECHANICS' LIENS (§ 309) — RIGHT TO LIEN—VALIDITY OF CLAIM.

Where a materialman unintentionally charged more than the agreed price on some of the items furnished, and those items were easily separable from the others, that fact does not defeat his lien for a judgment rendered in his favor for materials furnished, which judgment was less than his claim, since it would be presumed that the court excluded the amount of the overcharge.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by the Badger Lumber Company against the W. F. Lyons Ice & Power Company and others. Judgment for plaintiff for the amount of his claim, but denying a right to a mechanic's lien therefor, and plaintiff appeals. Reversed and remanded, with directions to enforce the judgment as a lien.

Botsford, Deatherage & Creason, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent W. F. Lyons Ice & Power Co. Bowersock, Hall & Hook, of Kansas City, for respondent Fidelity Trust Co., Trustee.

TRIMBLE, J.

Suit to enforce a mechanic's lien for lumber and materials sold by appellant to the W. F. Lyons Ice & Power Company for the purpose of, and used in, constructing an ice-manufacturing and meat-packing plant. A jury was waived, and the case was tried by the court. Appellant obtained judgment for $2,918.45 on the account sued on, but was denied a lien.

It is clear, from the finding of facts preserved in the record, that the only reason a lien was refused was because the court thought the last two items in the account were sold under a different contract from that under which the rest were sold. If the two last items were sold under a separate contract, they could not be considered as a part of the original account, and, if they were not a part of it, then the lien was not filed within six months after the account accrued. All other requirements of the statute for the establishment of a lien were complied with.

The first item in the account is dated September 3, 1908, and from this time the account continues down to and including May 3, 1909. From this date until October 9, 1909, there are no items charged, and no materials were sold. But on this date an item of 4,000 feet of insulating paper was sold, and on October 12, 1909, an item of 16 pieces of 2-inch by 6-inch No. 1 yellow pine lumber, 22 feet long, was sold to the company, and used by it in the building. The lien claim was filed January 29, 1910. If the two items above mentioned were sold under a separate and distinct contract from that under which the rest of the account was sold, then, of course, the account did not accrue on October 12, 1909, but accrued on May 3, 1909, which was more than six months prior to the filing of the lien claim. If, however, the last items were sold under the same general contract as the others were, then the lien was filed in time, and should be enforced. So that the only question in the case is whether or not the materials bought and used in October, 1909, were furnished under such circumstances as to show they were sold, with the others, under one entire general contract, so as to give appellant six months from October 12, 1909, instead of from May 3, 1909, in which to file a lien claim.

Where the evidence is conflicting, or where the circumstances are such as that different inferences may be reasonably drawn from the same facts, such a question is one for the jury. Darlington Lumber Co. v. Smith Building Co., 134 Mo. App. 316, 114 S. W. 77; Cole v. Barron, 8 Mo. App. 509. This rule is well...