Glencoe Lime & Cement Co. v. Polar Wave Ice & Fuel Co.

• Decision Date: 04 April 1916
• Docket Number: No. 14156.,14156.
• Citation: 184 S.W. 952
• Parties: GLENCOE LIME & CEMENT CO. v. POLAR WAVE ICE & FUEL CO.
• Court: Missouri Court of Appeals

184 S.W. 952

GLENCOE LIME & CEMENT CO. v. POLAR WAVE ICE & FUEL CO.

No. 14156.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Rehearing Denied April 18, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the Glencoe Lime & Cement Company, a corporation, against the Polar Wave Ice & Fuel Company, a corporation, and another, begun in justice court and appealed to circuit court. From a judgment there for plaintiff, the named defendant appeals. Affirmed.

George W. Lubke and George W. Lubke, Jr., both of St. Louis, for appellant. Abbott, Edwards & Wilson, of St. Louis, for respondent.

REYNOLDS, P. J.

The Glencoe Lime & Cement Company, hereafter called Cement Company, commenced three actions before a justice of the peace of the city of St. Louis, against one Abernathy, a contractor, and the Polar Wave Ice & Fuel Company, to establish and enforce a lien as materialman under the mechanic's lien law against three separate pieces of real estate in the city of St. Louis, owned by the Polar Wave Ice & Fuel Company, hereafter called the Polar Wave Company. About the same time the Cement Company commenced an action in St. Louis county to enforce its lien for material furnished Abernathy for a superstructure on land in the county, also owned by the Polar Wave Company. From a judgment against both the contractor and owner before the justice in each of the three cases there pending, the Cement Company appealed to the circuit court, Abernathy, the contractor, however, not appealing from the judgment against him for the debt.

In the circuit court the three cases were tried together by agreement of counsel, a jury being waived, and at the conclusion of the trial the circuit court awarded judgments sustaining the lien against the several pieces of property in the city, and from these several judgments in each of the three cases the Polar Wave Company has prosecuted its appeal.

The judgment in each of the cases was for the amount demanded, less a credit for sacks returned, plus interest.

There are really just two points involved in this case: First, that the lien should fail because respondent had made a lumping charge of lienable and non-lienable items. Second, because respondent had not filed a just and true account within the meaning of the mechanic's lien law.

It appears that the charge in each of the three accounts is for cement sold and delivered by the Cement Company to Abernathy, the cement being used in the construction of improvements on the several lots owned by the Polar Wave Company. The cement was sold by the sack, some at 37½ cents a sack, some at 40 cents a sack, and was delivered on the premises by respondent to Abernathy in sacks. It further appears that there was an understanding between the Cement Company and Abernathy that the latter should have a credit of 10 cents a sack for each of the sacks he should return in good order to the Cement Company.

Here arises the first claim of defendant; that is, that these sacks in which the cement was contained are not lienable items, and including the price for them in the account was the improper joinder of lienable and non-lienable items. We cannot agree to this proposition. The evidence was clear that the contract price for the cement was 37½ or 40 cents per sack, delivered in the sack; so that the price of the sack was, in the first instance, as much a part of the price of the cement as was that of the cement itself. That is what Abernathy agreed to pay. Hence the price of the sack entered into the price of the cement in the sack and was a lienable item. Price v. Merritt, 55 Mo. App. 640, loc. cit. 645. The principle of this case was affirmed in E. R. Darlington Lumber Co. v. Westlake Construction Co. 161 Mo. App. 723, 141 S. W. 931, and in Landreth Machinery Co. v. Roney, 185 Mo. App. 474, 171 S. W. 681. In the case at bar there was uncontradicted testimony tending to prove that Abernathy, the contractor, agreed to pay so much for the cement in sacks on the delivery of the cement to him at the places specified in the sacks. That price covered sack and contents. In point of fact, it does not appear that the cement could have been delivered in any other way than in sacks or containers of some sort. Abernathy, the contractor, was entitled to a credit of 10 cents a sack for such of the sacks as he returned, but that did not disturb the original contract, namely 37½ cents per sack for some, 40 cents per sack for others, and the refund of 10 cents for each sack returned in good condition, became a mere matter of application of credit on the account.

In Snell v. Payne, 115 Cal. 218, 46 Pac. 1069, we have a case very much like the one at bar, a case of a mechanic's lien where the appellant there charged for 18 barrels, in which the lime which he furnished was packed, at 25 cents for each barrel. It appeared that the lime furnished by appellant in that case was packed in barrels; that most of the barrels were returned to appellant after the lime had been used, and a credit given by appellant for the value of the barrels, at the rate of 25 cents each. Referring to this charge, which included the cost of the barrels as well as their contents, and which was the third ground of objection to the lien there involved, the Supreme Court of California, said:

"As to the third ground, we think that where material is usually delivered in certain packages, it is proper to charge for it as packed, although the small material constituting the package does not literally go into the construction of the building."

The Supreme Court of Idaho, in Hill et al. v. Twin Falls, etc., Co., 22 Idaho, 274, 125 Pac. 204, has practically adopted the same view as that taken by the California court and by our courts in the cases above cited, saying:

"It is a well-recognized principle that a materialman who makes a contract for the delivery of material to be used, and which is actually used, in the construction of an improvement, may include in a claim of lien not only the value of the material but the cost of delivery to the place of use, and, this being the general rule, there can be no reason why, when the labor is done and the material furnished by different persons, each person should not be entitled to a lien."

In support of its theory that the return or refund price of the sacks was not lienable, appellant Polar Wave Company asked this declaration of law:

"If from the evidence the court finds and believes that the amount claimed by plaintiff in the claim of mechanic's lien sued on in this case included in one lumping charge the cost of the cement used by the defendant Abernathy in the construction of the building of the defendant Polar Wave Ice & Fuel Company and the cost of the sacks in which said cement was delivered, and that said sacks did not enter into and were not used in the construction of said building, then the plaintiff is not entitled to a mechanic's lien for any amount against the property described in the plaintiff's petition or statement of plaintiff's cause of...