Feeny v. Rothbaum
| Decision Date | 01 May 1911 |
| Parties | MARTIN FEENY et al., Respondents, v. ISADORE ROTHBAUM, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
AFFIRMED CONDITIONALLY.
Vinton Pike and B. M. Achtenberg for appellant.
(1) The petition failed to state a cause of action in that it failed to state when the account sued on accrued. The court erred in overruling defendants' objection to the introduction of evidence at the opening of the trial, and in refusing defendants' instructions numbered 1 and 2, and in giving plaintiffs' instruction number 1. Coal Co. v Ryan, 48 Mo.App. 512; Mfg. Co. v. Burnes, 59 Mo.App. 391; Drey v. Ridpath, 16 Mo.App. 134; Sanderson v. Fleming, 37 Mo.App. 597; Bradish v James, 83 Mo. 313; Helwell v. Langford, 33 Mo 396; Fire Extinguishing Co. v. Farmers' Electric Co., 165 Mo. 171; U. S. Water Co. v. Sunny Slope Realty Co., 133 S.W. 369. (2) In mechanics' liens filed by a subcontractor, the account must set forth the items actually furnished, and not a mere estimate thereof. The court erred in overruling defendants' objection to receiving in evidence the mechanic's lien paper, and in refusing defendants' instructions numbered 1 and 2, and in giving plaintiffs' instruction numbered 1. Lewis v. Cutter, 6 Mo.App. 54; Kling v. Railroad, 7 Mo.App. 412; Schulenburg v. Vrooman, 7 Mo.App. 133. (3) In mechanics' liens filed by a sub-contractor, the account must set out in detail the items of material and labor furnished, giving the amount of each and the price charged therefor, and not a lump price for the different kinds of labor and material furnished. The court erred in overruling defendants' objection to evidence in support of the various items printed in bold face in appellant's abstract of record, and in refusing defendants' instruction numbered 6 with its subdivisions as asked; in amending said instruction, and in giving plaintiffs' instruction numbered 1. Kling v. Railway Construction Co., 7 Mo.App. l. c. 412; O'Shea v. O'Shea, 91 Mo.App. 221; Kern v. Pfaff, 44 Mo.App. 29; Coe v. Ritter, 86 Mo. 287; Poppert v. Wright, 52 Mo.App. 580.
John D. McNeely and B. J. Casteel for respondents.
(1) The court properly overruled defendants' objection to the introduction of any evidence under the petition. The pleader followed Pattison's form, stating that the "demand became due and payable on the 3d day of May, 1910," instead of saying "accrued on the 3d day of May, 1910," but that is what was meant, as the context shows, taken in connection with the statement contained in the lien paper (referred to in the petition). "That said demand accrued within four months prior to the filing of this lien, to-wit, on the 3d day of May, 1910." If the two taken together shows when the demand accrued, and that the lien was filed in time, it is sufficient, and especially is this true where the evidence shows, as in this case, that the demand accrued as stated in the lien paper. Hayden v. Wulfing, 19 Mo.App. 353; Planing Mill Co. v. Allison, 138 Mo. 50. The cases cited by appellants have no application, as they were cases where the petition and lien showed that the demand had accrued for more than the statutory period, before the filing of the lien, except the case of U. S. Water Co. v. Sunny Slope Realty Co., 133 S.W. 369, and in that case the question was, should the time be counted from the time of purchase of the materials, or the time they went into the building? There being no demurrer filed the defect in the petition, if any, was cured by the finding of the court. Johnson v. Railroad, 96 Mo. 346; Hurst v. City of Ash Grove, 96 Mo. 168; McDermott v. Claas, 104 Mo. 14; William Jones v. Shoor, 53 Mo. 68; Brick Co. v. Schlingman, 88 Mo.App. 17; Saulsbury v. Alexander, 50 Mo. 142; Jones v. Louderman, 39 Mo. 287. If the petition failed to state a cause of action a motion in arrest of judgment was the proper way to take advantage of it. Heltzell v. Haynes, 35 Mo. 482; Frazer v. Roberts, 32 Mo. 457. (2) The mechanic's lien was properly admitted in evidence, as it contained not only the estimate, but the items that actually went into the building. As the contract price for the plumbing and gas fitting was for a specific sum, $ 467.20, the work to be done, and the materials to be furnished of the kind and character, required by the plans and specifications, in the hands of both the owner and contractor, an itemized account was unnecessary. Hilliker v. Francisco, 65 Mo. 598; Planing Mill Co. v. Allison, 138 Mo. 50; Grace v. Nesbitt, 109 Mo. 9; McDermott v. Claas, 104 Mo. 14; Lumber Co. v. Edward B. Stoddard Co., 113 Mo.App. 306; Mahan v. Breinell, 94 Mo.App. 165; Miller v. Whitelaw, 28 Mo.App. 639. The work being done under a contract for a lump sum, all the items were lienable, and are set out only to show what was necessary to complete the job, as figured in the estimate. (3) Giving respondents' instruction was fully justified by the evidence, and in a case where all the evidence is not set out in appellants' abstract of the record the court will assume that it was justified. The refusal to give defendants' instructions was likewise proper, as there was no evidence upon which to base them.
The petition alleges that plaintiffs compose a partnership in the plumbing business in the city of St. Joseph, and as such were subcontractors in furnishing material and labor in putting in the plumbing in defendant's house, and this action is to enforce a mechanic's lien therefor. The judgment in the trial court was for the plaintiffs.
The account is composed of a number of items not objected to, aggregating with those complained of, the sum of $ 467.20. Those complained of are as follows:
"Water Company, $ 4.75; lead in street, $ 7.50
$ 12.25
Cleanouts and ferrils
2.50
Plumbing permit, $ 5.00; sewer and water per-
mit, $ 2.00
7.00
Hangers, screws, gasoline, putty, etc.
5.00
Laborers' time
25.00
Plumbers' time
80.00
Drayage
5.00
Putting in two floor drains in basement
12.00
Galv. vent and fittings
7.00"
The items "Water Company, $ 4.75" and "lead in street, $ 7.50" are so indefinite and unspecific as to be improper as against the owner in a bill by a sub-contractor with whom the owner has not dealt and who must get his information from the account. The same may be said of the item "Laborers' time, $ 25.00." There was necessarily much labor of different kinds. It was explained in evidence that this particular item was for digging in the street to connect pipes. If so, it should appear in the account. If the face of the account showed that the labor could refer to but one thing, it would be a different question. [Rude v. Mitchell, 97 Mo. 365, 11 S.W. 225; O'Shea v. O'Shea, 91 Mo.App. 221, 231; Kern v. Pfaff, 44 Mo.App. 29, 34.]
In Henry v. Plitt, 84 Mo. 237; McDermott v. Claas, 104 Mo. 14, 15 S.W. 995, and Mo. Valley Stone Co. v. Brown, 50 Mo.App. 407, it was held that fences and sidewalks, if constructed with the building and under one contract, were lienable, though the walk was not on the lot. Since those cases the statute has been amended so as to provide a lien for sidewalk independent of the building. But the principle of the decisions remains in force. In Pullis v. Hoffman, 28 Mo.App. 666, a lien was allowed for illuminating tiling, extending into the sidewalk, which lighted the basement. And it was held in Beatty v. Parker, 141 Mass. 523, 6 N.E. 754, that a lien could be had for a drain pipe constructed with the house, extending through the cellar wall into the yard and thence into the street into the sewer. This case seems favorably cited in Dugan Cut Stone Co. v. Gray, 114 Mo. 497, 21 S.W. 854.
We therefore hold that if the item "lead in street" had been...
To continue reading
Request your trial