Banner Lumber Co. v. Robson

• Decision Date: 07 April 1914
• Docket Number: No. 13319.,13319.
• Citation: 168 S.W. 244,182 Mo. App. 611
• Parties: BANNER LUMBER CO. v. ROBSON et al.
• Court: Missouri Court of Appeals

168 S.W. 244

182 Mo. A. 611

BANNER LUMBER CO. v. ROBSON et al.

No. 13319.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

Rehearing Denied July 2, 1914.

1. MECHANICS' LIENS (§ 134)—FORM OF CLAIM—DESCRIPTION—ABBREVIATIONS.

A lien account is not vitiated by the use therein of abbreviations and trade terms in describing the items; but evidence to explain their meaning may be introduced at the trial to enforce the lien.

2. MECHANICS' LIENS (§ 139)—SUFFICIENCY OF CLAIM.

It is enough that a lien account sufficiently reveals the material for which the lien is sought to apprise the owner and the public of the nature thereof, and to disclose that the demand is one within the lien law.

3. PLEADING (§ 420)—AMENDED PETITION—OBJECTION—WAIVED BY ANSWER.

A change in the cause of action introduced by an amended petition is waived by answering it.

4. MECHANICS' LIENS (§ 276)—PLEADING—AMENDMENT—RELATION BACK.

The amended petition in an action to enforce a mechanic's lien not declaring on an entirely different cause of action, but counting on the original lien account, so that the gist of the action remains the same, the amendment relates back to the institution of the suit.

5. MECHANICS' LIENS (§ 149)—ACCOUNT— LUMPING CHARGES.

Items of a lien account are not lumping charges, which must be eliminated, merely because the account groups together items of material of the same kind and price, instead of separately stating the amounts thereof sold and delivered on certain days; the quantity of material and price per unit of measurement being stated.

6. MECHANICS' LIENS (§ 149)—ACCOUNT— DATING ITEMS.

Failure to set a date opposite each item does not invalidate a lien account; the lien statement as to whole disclosing that the items were furnished between certain dates and within the proper time.

7. MECHANICS' LIENS (§ 134)—ACCOUNTS—SUBSTANTIAL COMPLIANCE.

The mechanics' liens statute (Rev. St. 1909, § 8217), requiring a just and true account to be filed, is satisfied by a fair and substantial compliance.

8. MECHANICS' LIENS (§ 157)—ACCOUNT—EXCESSIVENESS.

A mechanics' lien is not vitiated by the account being slightly excessive; it resulting from an honest mistake.

9. MECHANICS' LIENS (§ 134)—ACCOUNTS—RIGHTS INVOLVED.

Greater liberality is exercised in favor of the validity of a lien account, informally and loosely prepared, where only the rights of the owner, who ordered and looked after the delivery of the material, and not those of third persons, are involved.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by the Banner Lumber Company against Joseph J. Robson and others, to enforce a mechanic's lien. From a judgment against the contractor only, plaintiff appeals. Reversed and remanded.

Robert W. Hall and Henry Higginbotham, both of St. Louis, for appellant. Frank C. O'Malley, of St. Louis, for respondents.

ALLEN, J.

This is an action to enforce a mechanic's lien for work and labor done and materials furnished by the plaintiff under contract with defendant Robson, the general contractor for the erection of certain buildings in the city of St. Louis, of which buildings, and the lots upon which they were erected, Maggie O'Malley was the owner. The latter died during the pendency of the suit, and the cause was revived against her administrator. Patrick O'Malley was the husband of Maggie O'Malley, now deceased. Phillip Lenz and Alvin J. Lenz are made defendants because of a certain deed of trust executed by Maggie O'Malley and her husband to said Phillip H. Lenz, as trustee, to secure the payment of certain notes payable to defendant Alvin J. Lenz; and Byrne is joined as a defendant because of a subsequent conveyance to him of a portion of the property sought to be affected by the lien. The judgment below was against the contractor only, the lien being denied, and the plaintiff appeals.

The lien was filed in the office of the circuit clerk on July 11, 1908, and the suit was instituted September 19, 1908. Thereafter George E. Smith, Esq., of the St. Louis bar, was appointed referee to try all of the issues. Said referee heard testimony and reported his findings and conclusions to the court, recommending judgment against the contractor, Robson, but that the lien be denied. Thereupon exceptions filed to this report by both plaintiff and the defendant were sustained, and the court appointed a new referee, to wit, Walter Diehm, Esq., of the St. Louis bar, to try all of the issues. Thereupon the plaintiff by leave of court filed an amended petition. The second referee tried the cause upon the amended petition and answer thereto, and upon the testimony taken before the first referee and certain further testimony adduced, and in his report to the court also recommended a personal judgment against the contractor and that the lien should be denied. To this report the plaintiff filed exceptions, which were overruled by the court, and judgment was entered as recommended, from which judgment the plaintiff's appeal is prosecuted.

There is some controversy as to whether the lien was filed in time. The last three items in the lien account are dated February 21, March 24, and April 2, 1908, respectively. As the lien was filed July 11, 1908, it must depend upon the last two items of the account. The controversy in this regard turns upon whether these two items were sold for and on the Robson account, or were sold to Patrick O'Malley personally for work outside of the contract. Without stating the evidence pertaining to this question, we may say that we agree with the view taken by both referees that the lien was filed in time.

To an understanding of the crucial questions involved, it is first necessary to explain the nature of the lien statement filed. It sets out that the plaintiff, with a view to avail itself of the benefit of the mechanic's lien statute, "files the account below set forth for the work and labor done and materials furnished by it under contract with J. J. Robson, contractor," etc. Then follows the description of the property with a statement that the account filed is "as per itemized bill attached hereto and marked Exhibit A." Then follows Exhibit A, which sets out the account of plaintiff with Robson, the contractor. It is dated April 1, 1908, and is on office stationery of the Banner Lumber Company. The various columns are headed "date," "pieces," "sizes," "length," "feet," "prices," "amount," "total." The account contains a long list of debit items, expressed chiefly by abbreviations and trade terms. Among a number of credit items appear cash credits on account of "lumber," "millwork," and "lath," respectively.

To the original petition was attached an account, referred to in the petition as a "bill of particulars," and marked Exhibit A. This account was likewise upon stationery of the Banner Lumber Company, with the columns headed in like manner as the account in the lien statement. But the body of the account differed from the lien account in certain particulars, especially in that certain items of the latter were subdivided, the prices divided, new dates given, and the same distributed throughout the account. This resulted in a considerable increase in the number of items charged. As an illustration of this, the ninth item in the original account, which was for 7,790 feet of star yellow pine flooring, and undated, was, in the account filed with the petition, subdivided into six items, which are scattered through the latter account beginning with the date of October 19th and ending with the date of November 14th. In like manner the first ten items in the original account were subdivided, with their prices, and scattered throughout the account under various dates. The proof taken before the referee went to establish the items of the account annexed to the petition, with their dates and prices. The total thus shown to be due exceeded by $2.46, the amount of the lien account filed, and plaintiff gave a voluntary credit...