Floreth v. McReynolds

Decision Date10 August 1920
Docket NumberNo. 2657.,2657.
Citation205 Mo. App. 143,224 S.W. 995
PartiesFLORETH v. MeREYNOLDS.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Suit by W. H. Floreth against B. E. McReynolds to foreclose a mechanic's lien. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

D. S. Mayhew, of Monett, for appellant.

H. A. Gardner, of Monett, for respondent.

STURGIS, P. J.

This is a suit to enforce a mechanic's lien against property owned by defendant. The defendant lived in and near Pierce City, Mo., 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 subcontractor 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 Ms 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                        $487 73
                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                          $261 16
                June 9. 21 lbs. Galv. iron made to order       4 35
                                                            -------
                                                            $265 51
                1918
                Oct. 18. Charging batteries, and connecting
                drainpipe (1 hr.)                                90
                Nov. 23. Charging batteries, 3 hours with
                helper                                         3 90
                                                             ------
                                                            $270 31
                

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 the 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 bathtub and lavatory, because, as he says, the bathroom 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 accrned nevertheless. McCall v. Atchley, 256 Mo. 39, 164 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 bathtub 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 18 is for "Charging batteries and connecting drainpipe (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 drainpipe 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 drainpipe, which the court found was done on November 23. The lien account, however has no charge for connecting drainpipe in the item for November 23, as that item is solely for charging batteries. The work of connecting drainpipe 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, Mo., to come and do this work. The witness then continued:

Q. Now, these items here, furnished here, on November 20, 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 23? 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...

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