Graves v. Pierce

• Citation: 53 Mo. 423
• Parties: SAMUEL L. GRAVES, Respondent, v. WM. B. PIERCE, Appellant.
• Decision Date: 31 August 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 423

SAMUEL L. GRAVES, Respondent,

v.WM. B. PIERCE, Appellant.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Linn Circuit Court.

A. W. Mullins, for Appellant.

I. The affidavit filed for plaintiff in the office of the clerk of the Circuit Court of Linn County, was insufficient to create a lien on the property. (W. S., 909, § 5; McWilliams vs. Allan, 45 Mo., 573.)

C. D. Pratt, for Respondent.

I. It is not necessary that the original account of the demand, or a copy thereof, “(filed for the purpose of securing the lien,)” should have been filed with the plaintiff's petition. It is sufficient that the petition distinctly alleges “the facts necessary for securing the lien.” (2 W. S., 909, § 8; 27 Mo., 264.)

II. The taking of the note for the amount of the lien did not extinguish the lien; no right was waived. (9 Mo., 58; 30 Mo., 263.)

III. It was not necessary to offer a formal surrender of the note; the record shows that it was filed with the papers in the case.

IV. The act providing the lien should be liberally construed, so as to do substantial justice to all parties. (46 Mo., 337.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to enforce a mechanic's lien.

The petition states, that in May, 1868, the defendant became indebted to the plaintiff in the sum of one thousand and twenty-five dollars, for machinery furnished defendant at his request; that said machinery was used by defendant in the erection and furnishing of a certain mill claimed by him, and in his possession, in the county of Linn, and State of Missouri; that the indebtedness was evidenced by the note of defendant filed with the petition; that the particulars of the indebtedness would more fully appear by the statement and affidavit filed by plaintiff in the office of the clerk of Linn county, Missouri, as a lien on the property in the petition described; that the indebtedness accrued on the 2nd day of May, 1868, and that on the 31st day of October, 1868, and within six months from the accruing of the demand, he filed in the proper office with the clerk of the Circuit Court of said county a true account of said demand, allowing all just credits, accompanied with a description of the lot or ground upon which said mill was erected, with the name of the owner thereof, which was verified as the law directs and which constituted a lien on said mill and lot to the full amount of plaintiff's demand. (The lot of ground was described by metes and bounds.)

The petition then states, that the whole amount of plaintiff's claim then due was seven hundred and fifty-two and 62-100 dollars with interest, &c., and prayed judgment for said sum, and that the lien be enforced, and the property described sold for the payment thereof.

The defendant in his answer admits the indebtedness and that he had executed his note therefor, which, he charges, was accepted in full settlement for said machinery, and charges, that he paid on said note, the sum of twenty-five dollars, for which no credit had ever been given; denies that plaintiff filed in the office of the clerk of the Circuit Court of Linn county a true or correct account of his demand, or that all just credits were allowed; but avers that plaintiff had failed to credit him with the sum of twenty-five dollars paid thereon; denies that any lien was acquired on defendant's said mill or property mentioned in the petition; denies that the whole amount due plaintiff on the 31st day of October, 1868, was $752 62-100, but states that the amount due on said day was the sum of $726.

On the 2nd day of December, 1869, a trial was had before the court, no jury being demanded; when the court rendered judgment against the defendant for the amount appearing to be due by said note with interest, after allowing the $25 claimed to have been paid by the defendant, and which was admitted by the plaintiff, and further ordered, that the mill and grounds named in the petition be sold for the payment of the judgment, and that the mechanic's lien be foreclosed against the same.

On the trial plaintiff offered to read in evidence, from the record of mechanic's liens kept by the Circuit clerk, a demand in favor of the plaintiff and against the defendant, which reads as follows:

STATE OF MISSOURI,

)

ss.

County of Linn.

)

“Before me the undersigned, Notary Public, within and for said county, this 31st day of October, 1868, came Chester D. Pratt, who, being duly sworn according to law says, William B. Pierce is indebted to Samuel L. Graves in the sum of seven hundred and fifty-two 62-100 dollars, being balance due on three sets of wool-carding machines, with cards, clothing and one picker, sold by said Graves to said Pierce, on the 2nd day of May, A. D. 1868, which debt is evidenced by the promissory note of said Pierce made to said Graves at the time aforesaid. Affiant further states, that the said machinery is now in a building claimed by said Pierce, and situated on a lot of ground containing about one acre, and described as follows: Being a part of the S. E. 1-4 of the N. W. 1-4, section 2, township 57, range 18, and bounded as follows: Commencing on a line five hundred and thirty feet south on the south end of the centre of Poplar street, in the town of Bucklin, running thence south 125 feet, thence east 318 1-2 feet, thence north 125 feet, thence west 318 1-2 feet.

Signed,

C. D. PRATT.

Sworn to and subscribed, &c.”

The defendant objected to the reading of this record in evidence, because neither the original of said account, or any copy thereof, had been filed with plaintiff's petition; because the original account is the best evidence of its contents, and because the said record of the plaintiff's demand, does not show, that the account claimed was due plaintiff after all just credits were given the defendant.

The court overruled said objections, and permitted the evidence to which the defendant excepted.

The plaintiff then read in evidence the note named in plaintiff's petition, which was in the usual form, dated, May 2nd, 1868, and due on the first day of August thereafter, and payable at the banking house of M. P. Argus & Co., Jacksonville, Ill., with interest at the rate of ten per cent. per annum after date, and with credits thereon for the payment stated in the petition.

This was all of the evidence offered or given on either side.

The defendant, at the close of the evidence, moved the court to give several declarations of law, none of which need be noticed but the first, which is as follows:

“The record of the demand filed by the plaintiff in the office of the clerk of the Circuit Court of Linn county, and read in evidence, is insufficient to create a lien in favor of the plaintiff upon the property described in the petition.”

The court refused this declaration of law, and the defendant again excepted.

After judgment had been rendered as before stated, the defendant filed a motion for a new trial, setting forth as grounds of his motion, that the court had admitted improper evidence, had refused proper declarations of the law; and because the demand, filed by the plaintiff to secure his lien, is...