Berkshire v. Hall
| Decision Date | 18 February 1918 |
| Docket Number | No. 12755.,12755. |
| Parties | BERKSHIRE et al. v. HALL et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
"Not to be officially published."
Suit in equity by John M. Berkshire and Ben II. Berkshire, doing business as the Berkshire Lumber Company, against Herbert F. Hall, Harvey Stiver, the Kansas City Structural Steel Company, and others, with cross-petition by the Steel Company. From a judgment allowing the Kansas City Structural Steel Company a lien, and refusing to allow other liens in a certain amount, with a personal judgment against defendant Harvey Stiver, the Steel Company appeals. Reversed, and cause remanded.
Hadley, Cooper, Neel & Wright, of Kansas City, for appellant. Ellis, Cook & Barnett, of Kansas City, for respondents.
Defendants Hall and Crowell were the owners of a tract of ground situated in Kansas City, Mo. Some time during the year 1914 they entered into a contract with defendant Stiver to construct a reinforced concrete building upon said ground. Stiver agreed to furnish all the materials and labor necessary for the construction of the building and to pay for the same. Stiver constructed the building, but failed to pay for a great deal of the material which entered into it. At the time of the making of the general contract with the owners, Stiver entered into a written contract with the defendant Kansas City Structural Steel Company (hereinafter called the steel company) for all of the structural steel entering into the building. Stiver had another contract with the Laclede Steel Company of St. Louis for all of the reinforcing steel to be used in the building. The steel company furnished all of the structural steel in accordance with its contract, but Stiver only paid $500 upon the contract, leaving $1,025 due the company. While the building was in course of construction Stiver at various times was unable to get from the Laclede Steel Company of St. Louis reinforcing steel on time, and when this would occur he or his foreman would call up the steel company and order the necessary reinforcing steel. The owners of the ground added extra work to Stiver's contract after he had gotten the job partly along. This extra work required the use of angle irons, iron frames for elevator doors, and things of that nature, all of which were purchased from the steel company at various times on various orders by Stiver, or his foreman. None of the money due the steel company from Stiver was paid to 1: except the $500 already mentioned, which was not paid on the orders, but upon the original contract for the structural steel.
The steel company brought eight mechanics' liens suits; one in the circuit court for $1,025, which was the amount remaining unpaid upon the original contract far the structural steel, and seven others before a justice of the peace, covering each of the orders made subsequent to the general contract. These suits were for orders aggregating $656.97, and were for amounts running from $5 to $203.96. All of the suits brought before the justice were tried, resulting in judgments in favor of the steel company. The first judgment rendered was for $5.18, from which there was no appeal, but the owners of the ground appealed from all of the other judgments rendered by the justice. While these appeals were pending in the circuit court, the plaintiffs herein brought an equity suit under the provisions of the statutes (Laws 1911, p. 314) to enforce various liens for material furnished defendant Stiver in the construction of the building, and the steel company was made a party defendant, and became a cross-petitioner to enforce its various lien claims.
The chancellor allowed the steel company a lien for $1,025, being the balance due upon its original contract for structural steel, but refused to allow the other liens, holding that all of the orders subsequent to the original contract was one continuing contract, and that the steel company by filing seven suits before a justice attempted to split up its cause of action, and that having established a lien in the sum of $5.18 by its first judgment in the justice court it was not entitled to establish a lien for the amounts due on the other orders, but a personal judgment Was rendered against Stiver for the whole amount claimed to be due by the steel company, and the steel company appealed.
The steel company urges that the various orders, made after the original contract for structural steel, were separate and distinct contracts, and were not covered by one continuing contract. The general rule is that materials furnished under distinct contracts cannot be mingled in one account and a lien obtained for the aggregate amount. Badger Lumber Co. v. Knights of Pythias, 157 Mo. 366, 57 S. W. 1059; Page v. Betters, 17 Mo. App. loc. cit. 375; Miller v. Herbert, 62 Mo. App. 682; Lumber Co. v. Harris, 107 Mo. App. 148, 80 S. W. 688; Lumber Co. v. Ice Co., 174 Mo. App. 414, 160 S. W. 49. This case is peculiar in most of its features. Most of the cases in which this rule was applied to defeat a lien action were instituted by original or subcontractors who had done work or furnished material under separate contracts, but sought to obtain a lien for everything after the time limit for filing on an earlier contract had expired by limitation by claiming the limitation began to run from the close of the account under the later contract. In other words, litigation of this kind is usually over a question as to whether the contractor who furnished materials at various times furnished them under one contract or a number of contracts, and if it were held that the latter was the case, then the materials furnished on the earlier contracts were barred by the statute limiting the time for filing liens. However, in the case at bar if the various orders were made under separate contracts, none of the contracts would be barred by reason of limitation.
However, it is a rule that one may not split his cause of action, and if he has one cause of action under one contract he must sue in one action for all due him under the contract, and when he brings an action and a judgment is rendered therein, the judgment concludes the parties in respect to the whole cause...
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