Carthage Superior Lime Stone Co. v. Central Methodist Church

• Decision Date: 29 May 1911
• Citation: 137 S.W. 1028,156 Mo.App. 671
• Parties: CARTHAGE SUPERIOR LIME STONE CO., Appellant, v. CENTRAL METHODIST CHURCH et al., Respondents
• Court: Kansas Court of Appeals

137 S.W. 1028

156 Mo.App. 671

CARTHAGE SUPERIOR LIME STONE CO., Appellant, v. CENTRAL METHODIST CHURCH et al., Respondents

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court--Hon. Thomas J. Seehorn, Judge.

Judgment affirmed.

Charles A. Loomis and Richard A. Jones for appellant.

James F. Muster and Scarritt, Scarritt & Jones for respondents.

OPINION

ELLISON, J.

Plaintiff is a company which furnishes stone for the purpose of being put into buildings. In the instance of this controversy, it furnished stone to a sub-contractor, which went into the construction of a large church building in Kansas City, Missouri. Not having received payment of its account, plaintiff instituted this action against the sub-contractor and the defendant church to enforce a mechanic's lien. The judgment in the trial court was for the plaintiff against the sub-contractor for the amount of the account, but was for the church building on the lien. Plaintiff appealed.

It appears that W. H. Johns was the contractor for the erection of the church building and that he sublet the stone work to defendant Donnelly. It also appears that plaintiff has a stone quarry at Carthage, Missouri, and that it furnished stone for the building to Donnelly. But there was evidence to prove that Donnelly had other contracts and that stone furnished by defendants was sent to the yards at Kansas City and used at other places as well as on the church building and there was also evidence tending to prove that some of the stone included in plaintiff's account was furnished to defendant Donnelly before the contract for the church building was let.

The law is that in order to maintain a mechanic's lien against the owner for material furnished to a contractor, or sub-contractor, it must have been furnished by the materialman for the building and must also have entered into its construction. It is also the law that the party seeking to enforce a lien against the owner must file a just and true account of the material furnished. It must be a just and true account of lienable material and if there is purposely included non-lienable articles, it will vitiate the lien. [Dougherty & Moss L. Co. v. Rothbaum (decided this term.)] And though if non-lienable articles are, by mistake, innocently included, it will not vitiate the lien (Hydraulic Press Brick Co. v. McTaggart, 76 Mo.App. 347), yet if they are of such nature, or the facts are such, that the good cannot be separated from the bad, the whole lien is destroyed. [Dugan Cut Stone Co. v. Gray, 43 Mo.App. 671; O'Brien Boiler Works v. Haydock, 59 Mo.App. 653; Lumber Co. v. Wright, 81 Mo.App. 535.] In Boisot on Mechanics Liens, sec. 428, the rule is stated as follows: "In order to render an error in the claim harmless, it must not only have been innocently made, but must be of such a nature that the elements of a valid lien can be found in the allegations that are correct. Where a mechanic has so intermingled his lien claim with non-lien items that the exact amount for which he is entitled to a lien cannot be readily ascertained by inspection of the claim, the whole lien must fail, whether the error was intentional or unintentional."

With these statements of what appeared in evidence, and what the evidence tended to prove, and the law applicable thereto, we will proceed to examine into errors charged to have been committed at the trial. These are stated to be four in number. The last is the only one of consequence. It relates to instruction No. 5, which directed the jury that if any material quantity of stone was included in the...