Clayton Lumber v. Seever

• Decision Date: 16 July 1920
• Docket Number: No. 16042.,16042.
• Citation: 223 S.W. 442
• Parties: CLAYTON LUMBER CO. v. SEEVER.
• Court: Missouri Court of Appeals

223 S.W. 442

CLAYTON LUMBER CO. v. SEEVER.

No. 16042.

St. Louis Court of Appeals. Missouri.

July 16, 1920.

Appeal from St. Louis Circuit Court; Thomas C. Kennings, Judge.

"Not to be officially published."

Action by the Clayton Lumber Company against Frank S. Seever and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.

O. J. Mudd, of St. Louis, for appellant. Seneca a Taylor, of St. Louis, for respondent.

NIPPER, C.

This is an action to recover for materials furnished by plaintiff, under a contract with defendant Frank S. Seever, as contractor, which materials were used in the erection of buildings erected on the land of the Seever Realty & investment Company. The petition further seeks to enforce a mechanic's lien.

The realty and investment company, by its separate answer, admits the allegations of the plaintiff's petition, except as to the exact amount claimed by plaintiff, but admits that whatever amount is due and owing plaintiff may be declared a lien upon the real estate mentioned and described in the petition, and consents that judgment may be entered sustaining and enforcing such lien for whatever sum may be found due.

Defendant, Frank S. Seever, by his separate answer, admits that at the time mentioned in the petition, at his instance and request, plaintiff sold and delivered to him, for use in the erection of five cottages on the premises described in the petition, the labor and materials as set out in the itemized statement in plaintiff's petition; that the same were reasonably worth the prices as stated, with the exception of one item for $21.65, leaving the total amount actually due as $1,119.24; that under the contract the plaintiff furnished such material, and that he used the same in said buildings.

Defendant, further answering, asked for affirmative relief, by alleging that under and by virtue of the terms of the contract which he had with plaintiff, plaintiff agreed to furnish this defendant, under his contract with his codefendant, the Seever Realty & Investment Company, the owner of the premises, all millwork and lumber necessary for the building and erection of five cottages, according to the plans and specifications, for the gross sum of $1,970; that after plaintiff had furnished a portion of the millwork and lumber necessary for the erection of the five cottages, the plaintiff, without legal excuse or just cause, refused to carry out its contract and furnish any more millwork or lumber, so that the defendant, in order to carry out his contract with his codefendant, was compelled to, and did, go out in the market and purchase of others at the best practicable prices sufficient millwork and lumber to complete the contract, and that by reason of such failure on the part of the plaintiff to perform its part of the contract this defendant suffered damages in the sum of $587.24, which he is entitled to recoup against the plaintiff, leaving the actual amount plaintiff is entitled to recover at $532, which amount defendant tenders to plaintiff and offers to allow plaintiff to take judgment against him therefor.

Plaintiff's reply avers that, under the contract between it and the defendant, the defendant was to pay on the first of each month a sum equal to 80 per cent. of the amount of materials delivered, but that the defendant failed to make any such payments; that thereafter the agreement was modified to read "that invoices be rendered on each delivery," and payment to be made equal to 80 per cent. of the amount delivered on the first of the following month; that defendant refused to make such payments; that it was ready at all times to perform its part of the contract, upon defendant's making the payments as agreed upon.

The case was tried before the court, without a jury. The court rendered judgment against the defendant for $1,119.24, the amount admitted by defendant to be the value of the material furnished by plaintiff.

The only assignment of error before this court is the failure of the court in refusing two declarations of law asked by defendant; and in his bill of exceptions appellant only...