Banner Lumber Co. v. Robson

• Citation: 168 S.W. 244,182 Mo.App. 611
• Parties: BANNER LUMBER COMPANY, Appellant, v. JOSEPH J. ROBSON et al., Respondents
• Decision Date: 07 April 1914
• Court: Court of Appeal of Missouri (US)

168 S.W. 244

182 Mo.App. 611

BANNER LUMBER COMPANY, Appellant, v. JOSEPH J. ROBSON et al., Respondents

Court of Appeals of Missouri, St. Louis

April 7, 1914

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Robt. W. Hall and Henry Higginbotham for appellant.

(1) The character of the materials is sufficiently described if stated in the lien account or if it can be found anywhere within the four corners of the papers filed with the intention of charging the property with the lien. O'Shea v. O'Shea, 91 Mo.App. 221; Holland v. Cunliff, 96 Mo.App. 67; Lumber Co. v Watson, 158 Mo.App. 179; Fireproof Hotel Co. v Jones, 116 F. 793; Knabb's Appeal, 10 Pa. 181, S. C. 51 Am. Dec. 472. (2) A mechanic's lien filed with the circuit clerk is not a pleading. Lumber Co. v. Investment Co., 168 Mo.App. 342; Planing Mill Co. v. Allison, 138 Mo. 50. (3) When the lien paper taken all together is sufficient to apprise the owner and the public of the general nature of the materials and demand of the claimants, then trade abbreviations may be explained by parol at the trial, if it is necessary to do so. Lumber Co. v. Watson, supra; Lumber Co. v. Capron, 145 Mo.App. 497; Lumber Co. v. Stoddard Co., 113 Mo.App. 306. (4) Substantial compliance with the statute is all that is necessary. Williams v. Stroub, 168 Mo. 346. (5) The omission to state in the items of debit that they are lumber may be supplied by the word "lumber" in another part of the account; in these cases by the word "lumber" at the head of the account. Henry v. Plitt, 84 Mo. 237; Lumber Company v. Stoddard Company, 113 Mo.App. 308. Or by the word "lumber" elsewhere in the lien paper than at the head. Schulenberg v. Werner, 6 Mo.App. 292; Lumber Co. v. Capron, supra; Same v. Watson, supra. (6) Even where one paper refers to another for its terms it is the same as though the words of the one referred to were inserted in the former; the same is true as to papers "annexed" to the principal one. The terms of the one must be read into the other. O'Shea v. O'Shea, 91 Mo.App. 221; Ramlose v. Dollman, 100 Mo.App. 347; St. Louis v. Gas Light Co., 155 Mo. 1; McKinney v. Doane, 155 Mo. 287, 9 Cyc. 582. (7) An account is a matter of debt and credit, or demand in the nature of debt and credit, between parties. Lumber Co. v. Stoddard Co., 113 Mo.App. 306; Holland v. Cunliff, 96 Mo.App. 67; Gibson v. Jenkins, 97 Mo.App. 27. Anderson's Law Dict., "Account," page 16; Black's Law Dict. , "Account," page 17; 1 Bouvier's Law Dict., Rawes Rev. "Account," page 63; 1 Am. & Eng. Enc. of law (2 Ed.), 434; 1 Cyc. 362. (8) Anything that constitutes a debit or credit is properly a part of the account. Gibson v. Jenkins, 97 Mo.App. 27. (9) Where the parties had it in contemplation that the whole of the items should form but one and not distinct matters of settlement, the whole account must be considered as a unit or a single demand. Page v. Bettes, 17 Mo.App. 366; Bruns v. Braun, 35 Mo.App. 337; Gibson v. Jenkins, 97 Mo.App. 27; Lumber Co. v. Building Co., 134 Mo.App. 316; Lumber Company v. Harris, 107 Mo.App. 148; Coal Co. v. Steamboat Colona, 36 Mo. 446; Boylan v. Steamboat Victory, 40 Mo. 244; Fulton Iron Works v. North Center Creek Iron & Smelting Co., 80 Mo. 265; Stine v. Austin, 9 Mo. 558; Ring v. Jamison, 2 Mo.App. 584; s. c. 66 Mo. 424. (10) "Credits." The opposite of debits. "Credit." In bookkeeping, the side of an account on which payment is entered; opposed to debit; that side of the personal account on which everything is entered that answers to an offset to a debt; that which is entered in an account as an offset to a debt; or for which the party in whose favor the entry is made becomes the creditor of another. 11 Cyc. 1191. (11) The credit side, when there are credits, is as essential and is as much a part of the account as the debit side. The two sides of the account necessarily refer to each other and must be seen and considered together in order to determine whet constitutes the account. And necessarily the credit side may aid the debit side. Definitions and authorities, supra, 7, 8, 9, 10. (12) The mechanic's lien statute of Missouri refers specifically and in terms to "credits," but nowhere, except by implication, refers to "debits." R. S. Mo. 1909, Secs. 8217, 8223. (13) If one paper by reference to another may incorporate terms of the other, or be read into the other, why may not the one side of an account--which is a unit composed of debits and credits--incorporate allegations stated in the one side, but omitted in the other? The words "lumber," "lath," and "millwork" on the credit side, could not have possibly referred to any material except material of the same nature on the debit side of the same account. (14) The fact that an item in the lien account is open to the objection of "lumping" is no ground for rejecting the lien, when the rest of the account is properly itemized. The lien may be good as to the materials properly itemized, though not good as to the items "lumped." Ittner v. Hughes, 133 Mo. 679; Johnson v. Building Co., 23 Mo.App. 546; Walden v. Robertson, 120 Mo. 38; McLaughlin v. Schawacker, 31 Mo.App. 365; Lumber Co. v. Strimple, 33 Mo.App. 154; Boisot on Mechanic's Liens, Secs. 425, 428. (15) A mechanic's lien has precedence over both buildings and land as to subsequent encumbrances and precedence over buildings alone as to prior liens, encumbrances or mortgages on the land. R. S. Mo. 1909, Secs. 8215, 8219; Holland v. Cunliff, 96 Mo.App. 67; General Fire, Etc., Co. v. Elevator Co., 165 Mo. 171. (16) Though the petition declares on a joint obligation against several defendants, and the evidence only shows an obligation of a single defendant, judgment may be had against the one defendant liable. Lumber Co. v. Investment Co., 168 Mo.App. 342; Bagnell v. Railroad, 242 Mo. 11, overruling same case, 180 Mo. 241; Hutchinson v. Safety Gate Co., 247 Mo. 71.

Frank C. O'Malley for respondents.

(1) The referee and court did not err in holding the lien paper insufficient, because it nowhere shows on its face, either in the preliminary statement, the account or any part of it what materials are contained in the account. Dwyer Brick Works v. Flannigan, 87 Mo.App. 340; Rude v. Mitchell, 97 Mo. 372; Grace v. Nesbitt, 109 Mo. 9; Baker v. Smallwood, 143 S.W. 518; Rechnitzner v. Vogelsang, 117 Mo.App. 148; Rothenburg v. Beard, 150 S.W. 871; Planing Mill Co. v. Allison, 138 Mo. 50; Foster v. Wulfing, 20 Mo.App. 89; O'Shea v. O'Shea, 91 Mo.App. 221; Lumber Co. v. Stoddard, 113 Mo.App. 306; Armstrong v. Chisholm, 1 A.D. 443; Lumber Co. v. Watson, 158 Mo.App. 179; Lumber Co. v. Capron, 105 Mo.App. 497. (2) Parol testimony is not admissible to explain the abbreviations here, because in this case it would be necessary to first prove by parol testimony what class of materials the abbreviations refer to. That would be doing more than explaining the abbreviated terms. It would be adding to the lien paper by parol testimony, since there is a clear distinction between testimony interpreting the abbreviations and testimony attempting to show the class or classes of materials referred to. Cases supra. (3) The lien paper is insufficient because it is full of lumping charges. Codling v. Nast, 8 Mo.App. 573; Kern v. Pfaff, 44 Mo.App. 29. (4) The judgment should be affirmed because it is clearly for the right parties. (a) The affidavit to the lien paper was at no time offered in evidence, and has no place in this record. Boland v. Webster, 126 Mo.App. 591. (b) There is no testimony in this case showing that plaintiff's account against the contractor, Robson, accrued within four months before the filing of the lien. There is no testimony showing that Robson is properly chargeable with the last two items in plaintiff's account. Allen & Co. v. Mining Co., 73 Mo. 688; Henry et al. v. Malone et al., 23 Mo.App. 83; Gauss v. Hussman, 22 Mo.App. 115; Darlington v. Eldridge, 88 Mo.App. 525; Baker v. Smallwood, 143 S.W. 518. (c) Plaintiff's lien paper mingles in one lien an account against defendant Robson with an account against defendant P. O'Malley. All the testimony in the case shows that P. O'Malley purchased the last two items on his own account. Miller v. Hoffman, 26 Mo.App. 199; Livermore v. Wright, 33 Mo. 31; Gauss v. Hussman, 22 Mo.App. 119; Schulenburg v. Vrooman, 7 Mo.App. 133; Allen v. Trumet, Etc., 73 Mo. 688; Darlington v. Harris, 107 Mo.App. 148; Hugan v. Higgs, 43 Mo.App. 161. (d) The fact that defendant P. O'Malley requested a statement of Robson's account, and stated to plaintiff that Robson had left, was sufficient to put plaintiff on its guard that defendant Robson had turned over the houses to the owner. Naughton v. Nicholson, 97 Mo.App. 332. (e) Plaintiff has failed to prove a sufficient running account as is required by our statute. Charles Miller, Trustee, Etc., v. Herber et al., 62 Mo.App. 682. (f) Plaintiff's account is not such an account as is required by the statute; because it is not a true one. The original petition gave a credit of $ 2.46, which is neither given in the lien paper nor the amended petition. Poppert & Sons v. Wright, 52 Mo.App. 576; Schulenburg v. Vrooman, 7 Mo.App. 137. (g) All of the testimony shows that the materials set out in the last two items of the lien account were ordered by defendant O'Malley after Robson turned over the buildings; that said materials were used in constructing coal bins; that coal bins were not provided for in Robson's contract. Hence, if Robson had no contract to build coal bins he could not charge the buildings with a lien therefor, even if he had ordered the stuff for the coal bins himself. Plaintiff is bound by the limits of Robson's contract. Henry v. Rice, 18 Mo.App. 510; ...