Bruce v. Berg

• Decision Date: 30 December 1879
• Citation: 8 Mo.App. 204
• Parties: LAWRENCE BRUCE, Respondent, v. GEORGE BERG ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 204

LAWRENCE BRUCE, Respondent,

v.GEORGE BERG ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 30, 1879.

1. The lien law contemplates running accounts for materials furnished, and one may have a lien for materials furnished under an implied contract.

2. A building was contracted to be finished on September 1st, and stone was furnished on open account by the subcontractor from time to time from May to September 21st, and then, after an interval of four months, the building being apparently complete, stone steps which the architect had refused to accept were by the subcontractor replaced with others, which constitute the last item of the subcontractor's account. Held, that this item was sufficiently connected with the others, there being evidence tending to show that all the items were furnished under one contract, express or implied.

APPEAL from the St. Louis Circuit Court.

Affirmed.

JEFF. CHANDLER, for the appellants: Petition must allege that the materials were furnished under a contract.--Ph. on Liens, sect. 120; 55 Ind. 502; 45 Ind. 260; 4 Gray, 289; 29 Barb. 20; 36 Mo. 578; 40 Mo. 561. That the materials were actually put into the building is not sufficient.-- House v. Thompson, 36 Mo. 450.

C. M. WHITNEY, for the respondent, cited: Vollmer v. Papin, post, p. --; Fitzgerald v. Thomas, 61 Mo. 499; Garnett v. Berry, 3 Mo. App. 197.

HAYDEN, J., delivered the opinion of the court.

This is an action brought by a material-man against Berg and his partner, subcontractors; Eagleson, contractor; and Crawford, owner of the property against which a special judgment is asked. There was a judgment below enforcing a mechanic's lien, and Eagleson and Crawford have appealed.

It is first contended that the petition is insufficient, as not showing that the materials were furnished under any contract with the subcontractors. By this, evidently, is meant express contract, as it is again contended that the contract must precede the beginning of the work on the building. If by this is meant that no material-man or day-laborer can have a lien under our statute where a special contract has not been made with him before the commencement of the work, the position is obviously untenable. As a matter of course, there must be a contract, express or implied; and the original contract, to be the foundation of subcontracts, must have some degree of definiteness about it. Hause v. Carroll, 37 Mo. 578. But the contract need not be an express contract; nor do the terms of our statute admit of such construction as was put upon the Massachusetts act in Parker v. Anthony, 4 Gray, 289, or upon the New York law in Hatch v. Coleman, 29 Barb. 201. Wag. Stats. 907, sects. 1, 5, 11. Our statute clearly contemplates running accounts for materials furnished and work done under implied as well as express contracts. The question of agency, and of the power of a contractor or subcontractor to bind the owner's property by implied contracts of a given extent or kind, is another and distinct question.

Here Berg and his partner had a subcontract for the furnishing of the cut-stone work, and ordered stone of the plaintiff, which the latter furnished at a given rate, but, as he says, “on open account.” This account runs from May 4, 1877, to September 21, 1877, inclusive. On appellants' part it was testified that the stone-work of the buildings was completed in July, and that, under the contract, the buildings were to be completed by the 1st of...