Fulton Iron Works v. North Ctr. Creek Mining & Smelting Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 265
• Parties: FULTON IRON WORKS v. NORTH CENTER CREEK MINING & SMELTING COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 265

FULTON IRON WORKS

v.NORTH CENTER CREEK MINING & SMELTING COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

AFFIRMED.

Phelps & Brown for appellant.

The finding and judgment of the court are unsupported by the law or the evidence. Baylan v. Victory, 40 Mo. 244; Madison, etc., Co. v. Colona, 36 Mo. 446. The materials not having been furnished under one contract, the lien was lost as to that furnished more than six months before commencement of lien proceedings. Phillips on Mechanics' Lien, § 324; Watts v. Whittington, 48 Md. 353; Trustees, etc., v. Hill, 44 Md. 454; Sweet v. James, 2 R. I. 270; Lawrence v. Wright, 33 Mo. 31; Phillips v. Duncan, 1 Pitts. (Pa.) 125; Spencer v. Burnett, 35 N. Y. 44. The right to enforce a mechanic's lien is founded solely upon the statute, and unless the party claiming to be entitled to its benefits brings himself clearly within its provisions, he cannot enforce the lien. Overton on Liens, § 532; Hubbard v. Schreyer, 14 Abb. Prac. R. (N. S.) 284; Hayward, etc., v. Loomis, 2 Dis. (Cin.) 544; Slag v. Thousand, etc., 16 N. Y. Sup. Ct., 428; 35 N. Y. 94.

Harding & Buler for respondent.

Mechanics' liens are remedial, and are to be construed liberally to advance the just and beneficial objects in view in their enactment. De Witt v. Smith, 63 Mo. 263; Smith's Com., § 547. When a lien is filed it relates back to commencement of the building. Douglass v. Zinc Co., 56 Mo. 388. When items come within a fair construction of the contract, or the understanding of the parties or an implied agreement to furnish machinery, the lien will be good. Gerard B. Allen Co. v. Frumet Iron & S. Co., 73 Mo. 688. A running account is good from the date of the last item. Stine v. Austin, 9 Mo. 554; Ring v. Jamison, 66 Mo. 424. The evidence shows all the materials were furnished under one contract, and the lien is, therefore, good.

NORTON, J.

This suit was brought to enforce a mechanic's lien for materials, fixtures, engines and machinery furnished and sold to the defendant for buildings, structures, engines and machinery for certain buildings and machinery known as reduction and dressing works for reducing, cleaning and dressing zinc and lead ores, situated on certain land in the petition described.

The date of the first item of the account was March 29th, 1878, for crusher jaws, mineral rolls, etc. The account then ran through April, May and up to September 16th, 1878. The next item in the account was April 23rd, 1879, with various items, running through April and May, 1879, the account closing May 23rd, 1879.

The account was filed with the circuit clerk of Jasper county on the 29th day of July, 1879, and suit was begun on the 15th day of October thereafter. The cause was tried before the court without a jury. It appeared in evidence that respondents furnished the articles mentioned in said account at the dates respectively stated in the account, but the appellants insisted on the trial that plaintiff had no lien on the property in controversy for any of the items in its account which accrued on or before the 23rd day of April, 1879, unless at or before such items were furnished, it was agreed and understood between the parties that the plaintiff should subsequently furnish such supplies and materials to the North Center Creek Mining & Smelting Company, and that the account was to be kept open for the purpose of adding such subsequent purchases. The court below gave judgment for plaintiff and enforced a lien for the full amount of said account on the buildings and machinery described in plaintiff's petition. From this judgment defendants have appealed.

The cause was tried by the court without the intervention of a jury. The only evidence in the case was offered by plaintiff, at the close of which, at defendant's instance, the court gave the following instruction:

The court declares the law to be, that if there were no dealings or transactions between the plaintiff and the North Center Creek Mining & Smelting Company, or any one on its behalf, from the 16th day of September, 1878, until the 23rd day of April, 1879, and there was no contract or understanding that there would be any such dealings or transactions, then the plaintiffs have no lien for any of the items in their account prior to April 23rd, 1879.

It is insisted by counsel for defendant that there was no evidence to sustain the judgment, and that, for that reason, it should be reversed. The question, therefore, presented for our determination is not whether the judgment was against the weight of evidence, but whether there was any evidence at all upon which it could rest. The evidence presented in the bill of exceptions clearly establishes the fact that all the items of the account were furnished defendant, and that all of them went into its reduction and dressing works at Webb City, and that the prices charged were correct; it further shows that the account began in March, 1878, and ran through April, May and September of that year, the last charge during the year being made on the 16th day of September. No further charge appears on the account till the 23rd of April, 1879, when the account shows that through that month and up to May 22nd various articles of a like character with those furnished previous to that time. If this were all the evidence, then, from the lapse of time intervening between the charge made in September, 1878, and the charge made in April, 1879, under the authorities...