Badger Lumber Company v. Muehlebach

• Decision Date: 28 November 1904
• Citation: 83 S.W. 546,109 Mo.App. 646
• Parties: BADGER LUMBER COMPANY, Respondent, v. JOHN G. MUEHLEBACH, Appellant
• Court: Kansas Court of Appeals

83 S.W. 546

109 Mo.App. 646

BADGER LUMBER COMPANY, Respondent, v. JOHN G. MUEHLEBACH, Appellant

Court of Appeals of Missouri, Kansas City

November 28, 1904

Appeal from Jackson Circuit Court.--Hon. A. F. Evans, Judge.

AFFIRMED.

Judgment affirmed.

C. M Ingraham and R. B. Middlebrook for appellant.

(1) Appellant's objection to the introduction of any evidence should have been sustained. Peck v. Bridwell, 6 Mo.App. 451; Langford v. Sanger, 40 Mo. 164; Shaw v. Allen, 20 Wis. 563; Black v Rogers, 30 Ind. 420; Wilcox v. Keith, 3 Ore 372. (2) The foundation of the mechanic's right to a lien is the existence of a contract for the work or material, which contract must be made with the owner or his agent, contractor or subcontractor. R. S. 1899, sec. 4203; House v. Thompson, 36 Mo. 450; House v. Carroll, 37 Mo. 578; Barker v. Berry, 8 Mo.App. 440; Plaining Mill Co. v. Brundage, 25 Mo.App. 268; Kick v. Doerste, 45 Mo.App. 140. (3) The court should have sustained appellant's demurrer to the respondent's evidence. (4) The court committed error in instructing the jury as requested by plaintiff. Paxson v. Pierce, 25 Mo.App. 62; Glasgow v. Heirs, 50 Mo. 81; Delevan v. Prior, 53 Mo. 314; Holliday v. Jones, 59 Mo. 482; Brown v. Kimmel, 67 Mo. 433; Kelly v. Railroad, 70 Mo. 609; Kick v. Doerste, 45 Mo.App. 140; Shermit v. Brueggestradt, 8 Mo.App. 47; Matney v. Gregg, 19 Mo.App. 107; Morrison v. Yancy, 23 Mo.App. 670; Williams v. Iron Co., 30 Mo.App. 662; Flynt v. Railroad, 38 Mo.App. 94; Wilburn v. Railroad, 36 Mo.App. 203. (5) The court committed error in refusing appellant's instruction numbered 1. (6) The court committed error in refusing to admit any evidence in support of appellant's separate affirmative defense as set forth in his separate amended answer, and in refusing appellant's instruction numbered 11. Hartman v. Berry, 56 Mo. 487; Deitz v. Leete, 28 Mo.App. 541; Handley v. Ward, 70 Mo.App. 146; Lumber Co. v. Gates, 89 Mo.App. 205; Phillips on Mech. Liens (2 Ed.), sec. 427; Winder v. Caldwell, 14 How. (U.S.) 434; Withers v. Green, 9 How. (U.S.) 213; VanBuren v. Digges, 11 How. (U.S.) 461; Trustees v. Heise, 44 Md. 455.

Botsford, Deatherage & Young for respondent.

(1) The averment in plaintiff's petition is that appellant "is now and was at all times hereinafter mentioned the owner of the following described real estate." (2) Of course, where a price is agreed upon between the contractor and materialman that price is the presumptive market value or reasonable price of the goods where no contrary evidence is shown. These principles are well illustrated by the following cases: McMahon v. Bridwell, 3 Mo.App. 572; Bruce v. Berg, 8 Mo.App. 204; Miller v. Whitelaw, 28 Mo.App. 639; Hilliker v. Francisco Co., 65 Mo. 598; Deardorff v. Everhartt, 74 Mo. 37. (3) A. O. Thompson, who was the representative of plaintiff in this transaction, testified that the material sued for in this case was furnished for the buildings in question under a contract for the Madories. (4) At pages 57 to 59 of the abstract will appear a warranty deed to appellant by which the property in question in this case was conveyed to appellant. That warranty deed was dated January 21, 1901. As that deed shows title in appellant on the date of its execution, and as there is nothing in the record to show that appellant has since the making of that deed conveyed away his title, the presumption would be, in the absence of any other testimony, that he has ever since the making of that deed continued to be and still is the owner of the property. (5) The testimony of Thompson shows that Madorie & Son furnished the plaintiff with a list of the articles which it was desired the plaintiff should furnish and which was afterwards furnished and went into appellant's buildings. (6) There was no controversy about the evidence in this case. (7) There was no pretense by appellant that plaintiff signed any bond, but appellant's contention is that because Alfred Toll, one of the sureties, was president of the plaintiff corporation, therefore, appellants had a good defense to this action. The cases cited by appellant are against and do not support appellant's contention.

OPINION

SMITH, P. J.

This is an action by the plaintiff--a corporation--to enforce a mechanic's lien for materials furnished for the construction of certain buildings, etc. At the inception of the trial the defendant objected to the introduction of any evidence by plaintiff on the ground that the petition did not state facts sufficient to constitute a cause of action in that it--the petition--did not allege that the defendant at the time of the execution of the contract for the erection of the buildings was the owner of the land upon which the erection was to be made. By referring to the petition it is seen that the third paragraph thereof alleges that "the defendant is now and was at all times hereinafter mentioned the owner of the following described real estate"--describing it. The fourth alleges that "heretofore, to-wit, on the -- day of --, 1901, and prior to the furnishing of any of the materials hereinafter mentioned, the defendant as owner of said premises entered into one general contract with said Madorie & Son whereby for a valuable consideration to be paid by defendant they agreed to erect three separate three-story brick flats on the above-described premises."

Now, if we construe the foregoing allegations of the petition, as we must, most strongly against the pleading plaintiff, we must still conclude that the defendant's objection was not well taken and that it was, therefore, properly overruled. These allegations in substance and effect are that, in the year 1901 the land therein described belonged to the defendant as owner thereof, and that he, defendant, in that year, as owner entered into the contract with Madorie & Son, etc. The language of the third and fourth paragraphs already alluded to when taken in its entirety, it seems to us, must be held to allege that at the time the defendant and Madorie & Son entered into the contract for the erection of the buildings the defendant was the owner of the land on which such erection was to be made. There is no parallelism in fact or in law between this case and any of those cited and relied on by the defendant.

The defendant's second contention is that the evidence did not tend to prove that the materials alleged to have been furnished by plaintiff under said contract were used and actually went into the land, and, therefore, his demurrer to it should for that reason have been sustained. The testimony given by witnesses Thompson and Madorie was quite ample to warrant the submission of the case to the jury on this issue.

The defendant's third contention is that the evidence adduced by plaintiff to prove the ownership of the land at the time of the making of the contract between him and Madorie & Son was inadmissible because secondary and not the best--no foundation having been laid for its introduction. To this contention we are unable to yield our assent because the record discloses that the plaintiff introduced in evidence a deed from the Holmeses to defendant by which the title to the land was vested in the latter on January 21, 1901. Nothing appearing to the contrary, the presumption would be that the defendant was still the owner of the land when he made the contract a month later. Besides, the contract itself recites the fact of the defendant's ownership of the land. More could not have been reasonably required.

The defendant's fourth contention is that the evidence adduced by plaintiff to establish the contract between defendant and Madorie & Son was incompetent. To this we can not agree for the reason that we think that the testimony of the witnesses Thompson and E. P. Madorie very clearly negate it.

At the conclusion of the evidence the court at the request of the plaintiff directed the jury to "give a verdict for plaintiff, finding the issues in its favor, and that the plaintiff was entitled to a lien on the property in question for the amount which it believed from the evidence was due to plaintiff on the cause of action stated in its petition," etc. In cases where it is disclosed by the record that there are controverted facts, such, for example, as that in Kick v. Doerste, 45 Mo.App. 134, such a peremptory direction as that contained in the first part of said instruction would be improper because an invasion by the court of the province of the jury. But in a case like that here, where the evidence tending to establish the constitutive facts thereof is undisputed and ample, no reason is seen why...