Crane Co. v. Neel
| Decision Date | 23 November 1903 |
| Parties | CRANE COMPANY, Appellant, v. S. M. NEEL et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Cause affirmed.
Grant I. Rosenzweig for appellant.
(1) Statutes of mechanic's lien should be liberally construed. O'Shea v. O'Shea, 91 Mo.App. 231; Southern v. Rolla, 75 Mo.App. 629. (2) Faurot's evidence that it was part of his purchase that these goods were for the Neel residence was admissible. The first notice the owner is required to have is that provided by statute. Henry v. Evans, 97 Mo. 47. (3) No mechanic's lien can be sustained unless it be shown that the material was bought for the building. Lumber v. Lumber, 72 Mo.App. 261; Schulenberg v. Johnson, 38 Mo.App. 404; Fathman v. Ritter, 33 Mo.App. 407. (4) The sheet from the book of original entry was admissible and was of great importance both as to the items which appellant delivered and as to the sale being for the building. Borges v. Bette, 142 Mo. 572; Anchor v Walsh, 108 Mo. 277; Smith v. Beattie, 57 Mo 282; Robinson v. Smith, 111 Mo. 205; Seligman v Rogers, 113 Mo. 642; Kaufman v. Christophel, 59 Mo.App. 83; Western v. Boice, 74 Mo.App. 353. (5) Faurot's statement as to the purchase being for the building was not improper declaration within the meaning of 74 Mo. 37. Crothers v. Acock, 43 Mo.App. 320; City v. Fisher, 61 Mo.App. 510; Carthage v Barman, 55 Mo.App. 212; Stove v. Spear, 65 Mo.App. 91; Cahill v. Elliott, 54 Mo.App. 387; Western v. Buckner, 80 Mo.App. 98; House v. Terril, 37 Mo. 578; Lumber v. Lumber, 72 Mo.App. 261; Fathman v. Ritter, 33 Mo.App. 407; Schulenberg v. Johnson, 38 Mo.App. 404. (6) Appellant's exhibit was not disqualified because not attached to the deposition. In any event a fair discretion would have permitted him to attach the same. Ludy's testimony qualified the same. Stoddard v. Hill, 38 S.C. 390; Statutes like section 2309 are directory and not mandatory. Copenny v. City, 57 Mo. 88; City v. Foster, 52 Mo. 513; State v. Jennings, 98 Mo. 493; City v. Noue, 44 Mo. 136; State v. Hannibal, 113 Mo. 297; Hicks v. Chouteau, 12 Mo. 341; Young v. Camden, 19 Mo. 309; Choate v. Noble, 31 Mo. 341; Crawford v. Greenleaf, 48 Mo.App. 590; Scarritt v. Jackson, 89 Mo.App. 585; Webb v. Metropolitan, 89 Mo.App. 611; Lackland v. Walker, 151 Mo. 262; Bank v. Graham, 147 Mo. 256; Bank v. Hofman, 74 Mo.App. 208; Heman v. McNamara, 77 Mo.App. 1. Examples requiring papers to be filed. Wolf v. Brown, 142 Mo. 617; Bick v. Wilkerson, 62 Mo.App. 31; Nelson v. Betts, 30 Mo.App. 13; Jackson v. County, 41 Mo. 247; State v. Muir, 20 Mo. 303; Loan v. Brown, 59 Mo.App. 466; Edwards v. Brown, 67 Mo. 379; Governor v. Rector, 1 Mo. 638. Notes shall be filed with the petition. Rothschild v. Lynch, 76 Mo.App. 346. (7) It is the duty of the trial court to allow amendments unless defendant is misled or surprised. McMurry v. Martin, 26 Mo.App. 438; Wetzel v. Griffith, 41 Mo.App. 509; Riddle v. Aiken, 29 Mo. 453; Anderson v. Hance, 49 Mo. 161; Coony v. Murdock, 54 Mo. 351; Christie v. Railway, 94 Mo. 456; Hannibal v. Knudson, 62 Mo. 569. As to depositions: Doan v. Glenn, 88 U.S. 33; Howard v. Stilwell, 139 U.S. 199; Nix v. Rector, 4 Ark. 275; Hatfield v. Perry, 4 Harr. (Del.) 464; Edleman v. Byers, 75 Ill. 369; Petriken v. Collier, 7 W. S. Pa. 392; Hobart v. McCoy, 3 Pa. St. 422; Wright v. Cabbot, 89 N.Y. 578; Shea v. Mabry, 1 Lea (Tenn.) 329; American v. Mayne, 9 Utah 321; Tyrell v. Cairo, 7 Mo.App. 300; Boeden v. Barber, 81 Mo. 636; Little v. Brubaker, 89 Mo.App. 1; Hoyberg v. Hanske, 153 Mo. 73; Deame v. Green, 31 Mo.App. 270; Holman v. Bachus, 73 Mo. 49; Laswell v. Presbyterian, 46 Mo. 282; Finley v. West, 51 Mo.App. 569.
Ellison A. Neel and Edward C. Wright for respondents.
(1) Faurot's statements to the plaintiff company that the goods were purchased for the Neel house were properly excluded as hearsay and not binding upon the owners. Deardorff v. Everhartt, 74 Mo. 37; Schulenberg v. Hawley, 6 Mo.App. 34; Grace v. Nesbitt, 109 Mo. 9; Current River Co. v. Cravens, 54 Mo.App. 216. (2) The exhibits referred to in Seymour's deposition and his testimony as to their contents were properly excluded as against defendant Neel. Crary v. Carradine, 4 Ark. 216; Augusta Co. v. Randall, 85 Ga. 297, 11 S.E. 706; R. S. 1899, sec. 2903; McCartney v. Buck, 8 Houst. (Del.) 34, 12 A. 717; Little v. Wyatt, 14 N.H. 23; Palmer v. Goldsmith, 15 Ill.App. 544; Gage v. McIlwain, 1 Strob. (S. C.) 135; Woodes v. Dennett, 12 N.H. 51; Batchelder v. Sanborn, 22 N.H. 321; Mercier v. Copelan, 73 Ga. 636; Sloan v. McDowell, 75 N.C. 29; Sanford v. Miller, 19 Ill.App. 536; Gorman v. Montgomery, 83 Mass. (1 All.) 416; Kaiser v. Alexander, 144 Mass. 71; 12 N.E. 209; Somers v. Wright, 114 Mass. 171; Brown v. George, 17 N.H. 128; Keith v. Kibbe, 64 Mass. (10 Cush.) 35; Watrous v. Cunningham, 71 Cal. 30, 11 P. 811; Neville v. Northcutt, 47 Tenn. (7 Cold.) 294; Godfrey v. Codman, 32 Me. 162; Adkinson v. Simmons, 33 N.C. 416; Thompson v. Porter, 4 Strob. Eq. 58; Ridd v. Robinson, 126 N.Y. 113. (3) The court below committed no error and under the evidence introduced could have done no other than he did. Lumber Co. v. Lumber Co., 72 Mo.App. 248, 261; Schulenburg v. Johnson, 38 Mo.App. 404; Cahill v. Elliott, 54 Mo.App. 387; Fathman v. Ritter, 33 Mo.App. 404; Grace v. Nesbitt, 109 Mo. 9; Hydraulic Co. v. Zippenfield, 9 Mo.App. 595; Simmons v. Carrier, 60 Mo. 581; Schulenburg v. Prairie Home, 65 Mo. 295; Current River Co. v. Cravens, 54 Mo.App. 220; Reitz v. Ghio, 47 Mo.App. 287; Kirtley v. Morris, 43 Mo.App. 144, 151; Rand v. Grubbs, 26 Mo.App. 591; Christopher v. White, 42 Mo.App. 428.
This is a proceeding to enforce a mechanic's lien. The plaintiff is a dealer in plumbing supplies. The defendant Neel made a contract with his co-defendant, the Faurot Company, a manufacturing concern, to construct in his building hot water heating appliances, including radiators. It is claimed that said Faurot Company bought the radiators that were used in the construction of said heating appliances from the plaintiff. Defendant Neel's answer was a general denial.
On the trial plaintiff sought to prove that the articles in question were sold by the plaintiff to the Faurot Manufacturing Company, aforesaid, for the purpose of being used in the defendant Neel's building, and for that purpose introduced Mr. Faurot, one of the members of the defendant company, who testified by deposition. In his deposition he made the following statement: "I went to the Crane Company with a list of the materials to be used in the construction of the heating plant in Dr. Neel's residence and stated to the Crane Company that that material was for use in the Neel residence and that they would receive their pay on completion of the work." On motion of defendant Neel, the following part of said statement was struck out of the record so far as it affected him, to-wit: "And stated to the Crane Company that that material was for use in the Neel residence and that they would receive their pay on completion of the work." The plaintiff also introduced the deposition of Andrew Seymour who was the plaintiff's bookkeeper at the time the articles in controversy were sold. In said deposition the witness referred to a certain entry in plaintiff's book which contained the original order for the articles in dispute. This paper was identified as "Exhibit A," but was not attached to the deposition, being sent under seal to the clerk of the circuit court. The notary was in court and plaintiff offered to withdraw the deposition and have the said item attached to it by him but the court refused the offer and excluded the exhibit. It was shown that it was the habit among the lawyers practicing in the Kansas City courts to withhold exhibits and produce them on the trial. There was other evidence introduced but plaintiff frankly admits that without that which the court excluded he was not entitled to recover. The court peremptorily instructed the jury to find for defendants. Plaintiff assigns as error the action of the court in excluding said evidence.
In Deardorff v. Everhartt, 74 Mo. 37, it was held "The declarations of the contractor that the materials were purchased for appellant's building, although made when they were obtained, are not evidence against the owners of the land." And a different ruling made in Morrison v. Hancock, 40 Mo. 561, was overruled. While plaintiff insists that the ruling in the former case is not good law it would not apply to this for the reason that here the contractor was testifying to his own declarations, which would prevent the application of said rule. But we can not see how that fact could make any difference as the reason for the rule is that the contractor not being the agent of the owner of the building is not authorized to bind such owner by his declarations. The rule is also recognized in Grace v. Nesbitt, 109 Mo. 9, 18 S.W. 1118. But it is suggested that the rule only had reference to its incompetency as evidence that the material was used in the construction of the building sought to be charged with the lien, but that it is competent evidence to prove that plaintiff sold the material to be used in such building. In other words, that the sale was made upon the credit of the building. We do not see how this can be so. The plaintiff may have sold the material to the contractor without any intention of looking to the building as security for the price of the material, and the mere fact that plaintiff knew that the material was to be used in defendant's building was no evidence in itself that it...
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