Gantner v. Kemper

• Decision Date: 31 January 1875
• Citation: 58 Mo. 567
• Parties: ANDREW GANTNER, Respondent, v. F. T. KEMPER, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 567

ANDREW GANTNER, Respondent,

v.F. T. KEMPER, et al., Appellants.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Cooper Circuit Court.

Draffin & Williams, for Appellants.

McMillan & Brothers, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

This was an action under the statute in relation to mechanics' liens, brought by the respondent against F. T. Kemper, the owner of the premises sought to be charged with the lien, and Marcus Williams, the contractor, for work and labor done and materials furnished by him, in the erection of an addition to the dwelling house of said Kemper the sum claimed to be due being a balance of six hundred and eighty-two dollars.

Both defendants appeared and filed answers. The only defense insisted on at the trial was payment. There was a verdict and judgment for the plaintiff for the sum claimed and for the enforcement of the lien, from which defendants have appealed to this court.

It appears from the evidence that at the time plaintiff was engaged in building the Kemper house, the defendant, Williams, was indebted to him for work and labor done and materials furnished, for other houses finished or in course of erection. The payments pleaded by Williams in bar of plaintiff's action, are shown to have been made by him on general account, and not for or on account of any particular building. Plaintiff testified that these payments were by him, at the time they were made, applied to other claims for work and labor and materials, than the one in controversy.

During the progress of the trial defendant's counsel offered to prove by the defendant, Williams, that in the month of August, 1872, he did not owe the plaintiff anything on the Pigott or Trigg buildings. The court refused to admit the testimony, but ruled that defendant's counsel might ask generally, whether anything was due on the general account; to which ruling defendants excepted and assign this action of the court for error.

How many buildings there were in August, 1872, on account of which it was claimed that Williams, the contractor, was indebted to the plaintiff, does not appear from the record; and it is difficult to see how defendant's counsel expected to benefit their clients by this evidence, when Williams' own testimony shows conclusively that he never paid any sum whatever, on account of any particular building. We think, however, the testimony was competent, although it would have involved the defendant, Williams, in a contradiction, except upon the theory that he did not, at that time, owe the plaintiff anything on account of any building, except the Kemper building, and to this he had previously testified. He had also testified that he did not know whether he owed anything on Trigg's building in August, and...