Excelsior Press Brick Co. v. Reinschmidt

• Decision Date: 04 March 1919
• Docket Number: No. 15233.,15233.
• Parties: EXCELSIOR PRESS BRICK CO. v. REISCHMIDT et al.
• Court: Missouri Court of Appeals

209 S.W. 546

EXCELSIOR PRESS BRICK CO. v. REISCHMIDT et al.

No. 15233.

St. Louis Court of Appeals. Missouri.

Argued and Submitted February 6, 1919.

Opinion Filed March 4, 1919.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by the Excelsior Press Brick Company against Anthony Reinschmidt and others. Judgment for plaintiff, and certain defendants appeal. Affirmed.

E. G. Curtis, of St. Louis, for appellants.

William Hilkerbaumer, of St. Louis, for respondent.

REYNOLDS, P. J.

Action to recover on account and establish the judgment as a mechanic's lien against a building erected for, and on the grounds of, the Lindenwood Female College, a corporation. The petition in this case charges that a certain quantity of brick was furnished to Anthony Reinschmidt, defendant, a subcontractor under the Westlake Construction Company, for a building on the grounds of the Lindenwood Female College for the use of that institution, the contract for the erection of the building having been made by James G. Butler with the Westlake Construction Company. The ground described is a lot in the city of St. Charles.

The evidence tended to show that the account furnished and filed as a lien was a correct and true account and that the steps necessary to attach a lien as provided by statute had been taken. Upon the question of the authority of Mr. Butler and the capacity in which he was acting in making the contract, this appeared: Mr. Butler was not present at the trial, but it was stipulated that if he was present he would testify that he was a member of the Board of Trustees of the Lindenwood Female College; that prior to the commencement of the dormitory building in question, for the erection of which the brick involved were used, the then president of the college was soliciting funds for the purpose of erecting a school building with class rooms, but that Mr. Butler did not approve of such building and refused to contribute to the fund, because he believed that the dormitory building of the kind described in plaintiff's lien was a greater necessity and more useful to the defendant college; that after discussing the erection of the building with other members of the Board of Trustees, Butler proposed at a meeting of the Board to erect the dormitory building at his own cost; that thereafter he caused to be prepared, at his own expense, plans for the building, submitted them to the president of the Board of Trustees of the college and to the president of the institution and other members of the Board constituting the executive committee; that these members suggested some changes in plans which Mr. Butler rejected; that the Board consented that he might erect a dormitory building at his own cost; that he and the members of the Board determined upon the location of the building, which was to belong to the defendant college and to be used by it as one of the college buildings, and" that thereafter the building described in plaintiff's lien was erected pursuant to the above arrangements on premises owned by the defendant college and the building was presented by Butler to the college, was accepted by it and is now used and occupied by it as one of its school buildings.

There was a verdict against the contractor by default, an instructed verdict in favor of James G. Butler, and a verdict establishing the lien against the other defendants. From this the Westlake Construction Company and the Lindenwood Female College have appealed.

The court instructed the jury at the instance of plaintiff that if they believed from the evidence that the Lindenwood Female College was the owner of the premises described in the lien, and that it authorized James G. Butler, in his own name, to enter into a contract for the erection on the premises of the building described in the lien, for the use and benefit of the Lindenwood Female College; and that if they believed that Butler, as agent for and in behalf of that college, contracted with the defendant Westlake Construction Company, to erect the building, and that the Westlake Construction Company contracted with plaintiff to build the walls and to perform the brick work on the building and that the plaintiff, under a contract with Reinschmidt, furnished the brick mentioned and described in the account, and that the brick actually entered into the...