Floreth v. McReynolds
| Decision Date | 10 August 1920 |
| Citation | 224 S.W. 995,205 Mo.App. 143 |
| Parties | W. H. FLORETH, Respondent, v. B. E. McREYNOLDS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Charles L. Henson, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
D. S Mayhew for appellant.
H. A Gardner for respondent.
This is a suit to enforce a mechanic's lien against property owned by defendant. The defendant lived in and near Pierce City, Missouri, but had accepted employment taking him to Central and South America where he had resided for several years. He had acquired and maintained the property in question as a home for his mother and sister who resided in a dwelling house thereon. The defendant returned at intervals to visit and see after his mother and sister and on one of these visits in the summer or fall of 1916 he determined to remodel and put modern improvements in this dwelling. Intending to leave again soon the defendant contracted with Frank Smith, a contractor, to do or have done this work. The defendant contracted with Smith to furnish the material and do the general plumbing work, also to install a water system and a lighting plant, each of said items at a fixed price amounting to $ 987.73. Plaintiff did this work as a sub-contractor of Smith. It was agreed that Smith would have general supervision of the work. It is also known that extra work and material would be necessary in connection with this part of the work and that Smith would order and be the judge as to such extras. The defendant then left the country and the work of remodeling his house was done in the winter and spring of 1916-17. Money was deposited in bank or furnished to Smith to pay for the work. Smith paid part of plaintiff's bill but not all. Defendant again visited his mother at Pierce City for a short time in October and November, 1918, and then went to New York City where he was when this suit was begun in February, 1919. Plaintiff served constructive notice on defendant of his lien claim about February 1st and filed the lien claim with the Circuit Clerk February 15, 1919. This lien claim is as follows:
1916.
To Contract for Plumbing
$ 224.85
To Contract for Water System
522.88
To Contract for Light Plant
240.00
987.73
Sept. 26, By Cash
500.00
Balance
Nov. 17, 50 Feet 10 Galv. Valley
3.45
21, 30 Feet 12 Galv. Valley
2.40
29, 16 Feet 10 Galv. Valley
1.05
494.63
Dec. 7, By Cash
300.00
194.63
1917
Feb. 7, 20 lbs, 8d Case Nails
.80
Extras on Plumbing, etc.
265.73
461.16
May 18, By Cash
200.00
Balance
June 9, 21 3-4 lbs. Galv. Iron made to order
4.35
265.51
1918
Oct. 18, Charging Batteries & Connecting
Drain Pipes (1 hr.)
.90
Nov. 23, Charging Batteries, 3 Hours with
Helper
3.90
This account is accompanied by an itemized statement, without any dates, of the "extras on plumbing etc." charged at $ 265.73.
The defendant raised the question in the Circuit Court as to validity of the constructive service of the summons by leaving a copy with his sister. Later however he filed an answer to the merits and went to trial. By so doing he waived any question of service and this point need not be considered.
The material question in the case is whether plaintiff perfected his lien within the statutory limit for filing liens after the work and furnishing material is completed. The plaintiff concedes that the validity of the lien depends on the last two items dated October 18 and November 23, 1918. The defendant contends that these items are merely colorable, not properly charged as a part of the lien account and charged only to save the lien from the Statute of Limitations.
It will be noted that the lien account is singularly indefinite as to the dates of work done or materials furnished. The plaintiff merely charges under the indefinite date of 1916 the three contract items of plumbing $ 224.85, Water System $ 522.88 and Light Plant $ 240 without designating when the work was done or materials furnished. He charges under date of February 7, 1917, the items of "Extras on Plumbing etc.," amounting to $ 265.73, though it is hardly possible that all the items of work and labor set out, but not dated, were furnished or performed on that day. Only five small items of charges are definitely dated, three in November, 1916, one on February 7, 1917 and one on June 9, 1917. These items are evidently extras. Then there is an interval of one year and four months followed by the two disputed items in October and November, 1918. The evidence is almost as indefinite and the most that we can say is that plaintiff performed his contract jobs and furnished the extras, other than the disputed items, during the last half of 1916 and the first half of 1917. He says he was delayed in his work by the carpenters as he could do his work only as the carpenter work progressed.
While defendant does not raise the question of failure of plaintiff to do all the work as contracted, the plaintiff admits that he never did complete the plumbing job of installing a bath tub and lavatory because, as he says, the bath room floor was not completed. This it seems was the fault of the contractor, Smith, who defaulted in his work and left it unfinished. Plaintiff's foreman having this work in charge said that the last carpenter work was done in the fall of 1917 and that this was the last of plaintiff's work also till the items of October and November, 1918. Plaintiff now says that it was defendant's fault that he has not completed his contract and that, having done all he could, defendant's indebtedness accrued nevertheless. [McCall v. Atchley, 256 Mo. 39, 164, 164 S.W. 593, S.W. 593; Holden v. Lyons, 175 Mo.App. 165, 157 S.W. 811.] Had plaintiff waited till he had completed the contract by installing this bath tub and lavatory and had included these items in his lien account, such might have extended the time for establishing his lien; but he did not do that and so has no items after June 9, 1917, except the disputed ones of October 18 and November 23, 1918.
It should be noted that the item of October 18th is for "charging batteries and connecting drain pipe (1 Hr) .90;" and that of November 23, 1918, is for "Charging Batteries 3 hours with helper 3.90." The trial court made a finding of facts and as to these items said: "The court finds that the last work done on this job by the plaintiff was the connection of a drain pipe on November 23, 1918, and that this work was done under plaintiff's contract with the defendant; but the court does not hold that charging of batteries by plaintiff about this date was work under the contract which would preserve plaintiff's lien." The trial court rejected the work of connecting batteries as a proper item of the lien account and sustained such account solely on the work of connecting the drain pipe which the court found was done on November 23. The lien account however has no charge for connecting drain pipe in the item for November 23, as that item is solely for charging batteries. The work of connecting drain pipe is included in the one hour's work on October 18. This accords with the evidence. As to the work done on November 23, the plaintiff's foreman testified that he did this work personally; that on November 20 the defendant, who was then at Pierce City on a visit, called this foreman who was at work at Granby, Missouri, to come and do this work. The witness then continued:
Q. Now, these items here, furnished here, on November 20th, Mr. McReynolds called you from Granby? A. Yes, sir.
Q. What did he say he wanted done about the batteries down there? A. He wanted me to come and start the plant up, and charge the batteries, and also instruct him how to operate it.
Q. Had you ever done that up to the time? A. Yes, sir, only we never had shown him, because he wasn't there.
Q. Why did you do this work on November 23rd? A. Because Mr. McReynolds called me up, and requested that I come over and do it.
Q. For what purpose? A. To instruct him, so that he could use it.
Q. Then, there is an item charged on October 24th, of 90 cents for charging the batteries. Explain what that was for. A. The building wasn't complete yet, and we didn't want the batteries to run down, and we did that, went over and charged the batteries, to keep them from deteriorating.
Q. These batteries were in connection with the light plant? A. Yes, sir.
Q. Just explain to the court the nature of these batteries and what you have to do to them to keep them in working order? A. You have to keep them charged up. They are not supposed to stand longer than six months. They should be charged that often, if not oftener.
Q. What was your purpose in doing the work on that day, charging these batteries? A. We wanted to charge the batteries to keep them from running down.
Q. If that had not been done, state what the result would have been? A. The batteries would have deteriorated, and would have to have been renewed.
Q. That would have been an extra expense? A. Yes, sir.
Q. Now, when Mr. McReynolds called you up from Granby, with reference to this item, on November 23rd, it is the first time that he had been there? You acted in pursuance to his request? A. Yes, sir.
Q. Tell what you did with reference to his going over the plant, and to his accepting it. A. We went in and I started up the engine and charged the batteries, and also gave Mr. McReynolds instructions how to take care of the plant and operate it, etc.
Q. What did he say about it, if anything? A. He didn't say anything in particular any more than he was glad that I came over to show him how to run it. He was...
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