H. B. McCray Lumber Co. v. Standard Const. Co.

• Decision Date: 14 June 1926
• Docket Number: No. 15712.,15712.
• Citation: 285 S.W. 104
• Parties: H. B. McCRAY LUMBER CO. v. STANDARD CONST. CO. et al.
• Court: Missouri Court of Appeals

285 S.W. 104

H. B. McCRAY LUMBER CO. v. STANDARD CONST. CO. et al.

No. 15712.

Kansas City Court of Appeals. Missouri.

June 14, 1926.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

"Not to be officially published."

Action by the H. B. McCray Lumber Company against the Standard Construction Company and others, in which the Security Stove & Manufacturing Company intervened. Judgment for plaintiff and intervener, and defendants James J. McCue and another appeal. Reversed and remanded.

S. R. Layton and George Horn, both of Kansas City, for appellants.

David M. Proctor and Joseph F. Keirnan, both of Kansas City, for respondents.

BLAND, J.

This is an appeal by the defendants James J. and Agnes V. McCue, from a judgment establishing certain mechanic's liens against their property. The facts show that shortly prior to September 20, 1923, defendant James J. McCue bought a lot in Kansas City, Mo., under a contract of purchase, paying a small amount of the purchase price in cash but receiving no deed. There is no evidence as to when the deed to the property was delivered, but the record discloses that the title at the time of the trial had been conveyed to said McCue and his wife, Agnes V. McCue, and at that time they owned the property as tenants by the entireties. On September 20, 1923, McCue entered into a contract with the Standard Construction Company, a corporation, wherein that company agreed to furnish the materials and labor for the construction of a house on the lot in consideration of the payment to it by McCue of the sum of $3,800. The McCues now occupy the house in question as their residence.

The Standard Construction Company obtained an estimate from plaintiff, the H. B. McCray Lumber Company, as to the cost of the lumber and like materials necessary to erect the house, and that company furnished the necessary lumber and such materials to the construction company to build the house, which lumber and materials were incorporated into the building. The delivery of the lumber and like materials furnished by plaintiff began on October 17, 1923, but the actual work of constructing the house started prior to that time. The total amount of the lumber and materials furnished amounted in value to $825.93, of which the Standard Construction Company paid plaintiff the sum of $300, leaving a balance due in the sum of $525.93. The prices charged were the reasonable market value of such lumber and materials at the time of their delivery. Plaintiff finished the delivery of materials on December 19, 1923, and demand was made for the balance of the account due prior to January 1, 1924. On March 4, 1924, plaintiff served on the defendant a written notice of its intention to file a mechanic's lien for the balance due if the same was not paid within ten days, such service being obtained by leaving a copy of the notice addressed to "James J. McCue and Agnes V. McCue" with the latter at their residence, their usual place of abode, as provided by section 9156, R. S. 1919. On March 19, 1924, plaintiff filed its mechanic's lien and brought suit to enforce said lien on April 21, 1924. The court rendered judgment for plaintiff in the full amount of its claim with interest, and declared said judgment to be a special lien against the property. The court also rendered judgment in favor of intervener, Security Stove & Manufacturing Company, in the full amount of its claim ($143) with interest, and likewise declared said judgment to be a lien against said property.

The appealing defendants attack the judgment in favor of both claimants. We will first take up the points made against the judgment in favor of plaintiff, H. B. McCray Lumber Company. It is insisted that the court erred in admitting in evidence plaintiff's lien statement for the reason that it is not sufficient to advise the owner that certain materials had gone into his building in such a way that they can be identified by him in the building. Plaintiff's statement is as follows:

Kansas City, Mo., 3/11/24. No. 1. M. Standard Construction Co., 4232 Flora Ave. Bought of H. B. McCray Lumber Company. Home Phone: Benton 1660, 18th and College Avenue. Bell Phone: Clifton 1960. Dealers in All Kinds of Building Material.

                ====================================================================================================
                Date.  | Feet.  |  Pieces.  |   Size.     | Length. |   Description.   | Price. | Extra   | Items
                       |        |           |             |         |                  |        | Items.  | on Est
                ----------------------------------------------------------------------------------------------------
                  1923 |   42   |     1     |    6×6      |   14    |     Number 1     | 52.50  |   2.20  |
                 10-17 | 1200   |    75     |    2×8      |   12    |     Number 2     | 42.00  |         |
                       |  224   |    12     |    2×8      |   14    |     Number 2     | 42.00  |   59.80 |
                       | 1440   |   135     |    2×4      |   16    |     Number 2     | 46.60  |   66.24 | 128.24
                *    * | *    * |  *     *  |  *       *  | *     * |   *    *   *     | *    * | *     * | *    *
                 12-3  |   28   |     4     | 7-pound     |         |   Sash weights   |  2.75  |         |
                       |  168   |    28     | 6-pound     |         |   Sash weights   |  2.75  |         |
                       |   80   |    16     | 5-pound     |         |   Sash weights   |  2.75  |         |
                       |   18   |     4     | 4½-pound  |         |   Sash weights   |  2.75  |         |
                       |   28   |     8     | 3½-pound  |         |   Sash weights   |  2.75  |    8.85 |
                       |        |     3     | Hanks       |         |   Sash cord      |        |    3.75 |  12.60
                ----------------------------------------------------------------------------------------------------
                

We are not copying the entire statement, as it is necesssary to show only enough of it to indicate its character. We might say, however, that in connection with the description of various items by numbers, appears additional information clearly showing that lumber is meant in connection with those items.

It is insisted that nowhere in this statement are found words indicating the character of the material furnished. We think that a man of ordinary intelligence would understand this statement. The heading shows that the claimant was a lumber company dealing in building materials, and this, taken together with the body of the account, shows that plaintiff was furnishing a definite number of feet of building material contained in a designated number of pieces of certain sizes, as 6×6 or 2×8. The length of such pieces is given, and these lengths are those in which lumber ordinarily is cut. The material is described as No. 1, No. 2, or No. 3, which evidently means the grade. Prices are stated in such a way that by mere calculation it is shown that it is meant under this head to disclose the price per 1,000 feet. The words "Extra Items" and "Items on Est." seem to denote nothing, but an examination of the statement shows that under the head of "Items on Est." appears the total price of materials furnished for a given day or a part of a day, indicating, no doubt, the price of the material contained in a certain load. We think that the lien statement was sufficiently definite. Henry v. Plitt, 81 Mo. 237, 241; Kneisley Lumber Co. v. Stoddard Lumber Co., 113 Mo. App. 306, 88 S. W. 774; Lumber Co. v. Ware, 158 Mo. App. 179, 183, 184, 138 S. W. 690.

As to the matter of sash weights the statement indicates to a man of ordinary intelligence that under the heading of "Size" the descripition of each weight is contained, such as "7-pound," "3½-pound," meaning the number of pounds in the individual weight; that under the head of "Pieces" is contained the number of weights in each item; and under the head of "Feet" is contained the total number of pounds in the item. As was stated in Lumber Co. v. Stoddard Lumber Co., supra, loc. cit. 315 (88 S. W. 778):

"It was competent to explain by oral testimony the meaning of the figures and abbreviations The figures, abbreviated words and initial letters, such as `S. & E., Com. Flg., No. 1 Rgh. Star. dp. sdg.,' doubtless can he shown to have a well-known meaning, and to be descriptive of the kinds and sizes of the different lots of lumber furnished. Sometimes the material was named; for instance, `Rubberoid roofing.'"

In Lumber Co. v. Ware, supra, loc. cit. 184 (138 S. W. 692) it was said:

"It would seem that, unless one is unduly obtuse, he would be led to understand, upon finding these items in a lien account designating hardware, lumber and millwork as parcels thereof, that the words `Strap Hgs.' in the context above shown means strap hinges; the letters `WDS' in the context above, to indicate such millwork as windows; `Cyp.' to suggest Cypress, etc., etc., and, furthermore, that they suggest lienable articles as contemplated by the statute. Trade abbreviations are always permissible and may be fully explained by parol at the trial, if it is necessary to do so, and, moreover, if they are well known, such as are commonly used in a trade, they are regarded as sufficient in a lien account."

The appealing defendants introduced testimony tending to show that a truck load of lumber, of which at least one-third was scrap lumber, was taken away from the house and hauled to another lot where one of the officers of the Standard Construction Company was erecting a residence. The only testimony on this subject was given by the truck driver who hauled the load, and his testimony was very indefinite as to the amounts of the various kinds of lumber that he described as having gone into his load. Said defendants seem to admit that the testimony that the materials were delivered on the McCue premises gave rise to a prima facie showing that they entered into the construction of the house, but it is claimed that when they offered evidence tending to show the removal of a part of the materials from the premises,...