Harry Cooper Supply Co. v. Rolla Nat. Bldg. Co.
| Decision Date | 13 November 1933 |
| Docket Number | No. 5299.,5299. |
| Citation | 66 S.W.2d 591 |
| Parties | HARRY COOPER SUPPLY CO. v. ROLLA NAT. BLDG. CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.
"Not to be published in State Reports."
Suit by the Harry Cooper Supply Company against the Rolla National Building Company, a corporation, Dan McDonald, trustee, M. E. Gillioz, and another. From a judgment in favor of named defendants, plaintiff appeals.
Reversed and remanded.
Mann, Mann & Miller, of Springfield, and Breuer & Northern, of Rolla, for appellant.
James E. Sater, of Monett, for respondents.
This cause comes from the circuit court of Phelps county, on a claim of appellant for a materialman's lien.
Appellant's place of business was in Springfield, Mo., and the material was sold and shipped by it to Rolla, Mo., upon the order of the McCarty Company, a subcontractor, with M. E. Gillioz, who was general contractor for the construction of a hotel in Rolla. The McCarty Company's contract was to "furnish and install the plumbing fixtures, boiler and heating devices and heating plant, in and for the buildings and improvements on the land described in plaintiff's lien and petition."
The Rolla National Building Company was the owner of the premises, upon which the improvements were made. Mr. Gillioz was also the owner of a deed of trust on the premises, securing a note for $100,000.
The evidence developed that the materials were sold and delivered by appellant to the McCarty Company, at Rolla, Mo., for use, and were used, in the building then under construction.
The balance shown to be unpaid, after allowing all credits, was the sum of $4,758.03.
The J. B. McCarty Company filed no answer, but each of the other defendants answered in the nature of a general denial, except that M. E. Gillioz, by a separate answer, in addition to the general denial, admitted that he was the owner of the deed of trust mentioned.
In appellant's opening statement it was admitted that a proper credit of $311.84 was discovered after bringing this action, which had previously, through error, been credited to another account of McCarty Company with appellant, but was thereafter credited on the account sued on.
In the opening statement for respondents, counsel for Gillioz admitted that so far as the defending defendants knew the account was correct, and that the amount due from J. B. McCarty Company to appellant was correct, but further stated that the item of May 7, 1931, which was the last item appearing upon the lien account, as shipped by appellant, did not go into the hotel building, and the issue was whether or not the lien was filed in time.
The undisputed testimony of J. N. G. Cooper, for appellant, upon the subject of the correct balance due, was that it amounted to $4,758.03; that the total charges on said account were $15,527.09, and the total credits were $10,769.06, leaving a balance due in the sum of $4,758.03. He stated that the item of $311.84, included in the last exhibit in evidence and shown on the ledger statements, was an item discovered after the lien was filed, and placed to the credit of the account as soon as the mistake was discovered.
Included as a part of the statement were certain interest charges as follows: $10.01 March 15, 1931; $32.10 April 8, 1931; $46.26 May 4, 1931; $32.49 June 3, 1931; $32.78 July 8, 1931; and $34.05 August 8, 1931. The witness testified that these were interest charges made on the old balances due on the account, and that invoices were mailed to the J. B. McCarty Company for the charges when they were made, which was according to trade practice.
In the cross-examination of witness Cooper, attention was directed to three items of invoices of material included in the lien statement: One of November 4, 1930, of $2.92, for a slide cutter wheel; one for $17.90 of date November 10, 1930, alleging items of three rigid wrenches and a set of 1-A Toledo-S. dies; and one in the sum of $26.05 of date November 10th, for a universal drive shaft.
It was contended by respondents that by reason of those items being in the lien statement, the statement as filed, was not a just and true account, and for that reason the appellant was not entitled to have its right to a lien submitted to a jury. Witness Cooper testified that in applying credits they had first endeavored to take care of the unsecured and oldest items in their account.
Witness Chris Brown, a plumber, employed by McCarty Company, testified that he had worked on the hotel job as an employee of the defendant McCarty Company, and that on May 14, 1931, he assisted Ralph Bowman, another witness, to install a number of china bolt caps on various closet bowls in the hotel, some of which were replacements of those which had been previously installed and broken, or knocked off, or which had not stuck on when first placed; and that some of them were then installed for the first time. Witness Brown also testified that he was cleaning up or finishing the job by placing some radiator pedestals, in order to raise the radiators; and that these items were furnished by appellant.
R. F. Bowman, an employee of McCarty Company, testified that he worked on the job about three days, to wit, May 12, 13, and 14, 1931, finishing up the plumbing job in order to make it meet the requirements of the architect, so that Mr. McCarty's job might be accepted as complete. He testified to putting on china bolt caps and to putting pedestals under various radiators, to raise them, to meet the architect's requirements, and that it was necessary to place pedestals under the radiators, that they might operate properly, and that this material was furnished by the plaintiff.
The evidence further showed that at the time the china bolt caps were delivered no separate charge was made for them; they were a part of and included in the general charge; and that the radiator pedestals were originally charged out and that the invoice was later canceled on the basis that these pedestals, which were used, should be included as part of the price of the radiators themselves, it appearing that there was some question as to whether the radiators should have had higher legs when first furnished.
Witness Bowman further testified that when the job was finished in May, from the 12th to the 14th, he installed certain brass plugs in the domestic water heater system, and that they were the brass plugs charged for and delivered, as shown in the lien item, under date of April 8, 1931, but not installed until the middle of May. He further testified that he checked in the materials from the Harry Cooper Supply Company, on this job, and that the materials set out in the lien statement were used in the job, except those that were returned as shown by the credit memorandums for returned merchandise.
The evidence further showed that no one was working on this particular plumbing job from some time in March until May, as above stated, at which time the items mentioned were installed.
J. B. McCarty, president of the J. B. McCarty Company, defendant, testified that they bought the material from the plaintiff, Cooper Supply Company; that the witnesses Bowman and Brown worked on this job in May, 1931, and that the china bolt caps used were to replace broken ones or ones that had been knocked off in the hotel opening; that they carried these in stock; and that he thought they were furnished from his stock, but that he did not know where they did come from.
Witness Maack, one of the architects, testified that none of McCarty's workmen were on this job from March until in May; that the McCarty Company's job was not accepted as satisfactory until later.
At the conclusion of the evidence the trial court sustained demurrers offered by respondents M. E. Gillioz and Rolla National Building Company, and instructed the jury to return a verdict for appellant, against the J. B. McCarty Company.
Respondents' additional abstract referred to appellant's abstract, directing attention to the testimony of Jack Cooper, treasurer of the plaintiff, Cooper Supply Company:
Respondents insisted that the lien account was not filed in time and that the appellant had included in it, items known to be nonlienable, and had knowingly failed to give credit for all payments on said account, especially emphasizing their objections to permitting appellant to prove that on May 12th, 13th, and 14th certain bolt caps were put on the toilet bowls, where the same had originally been installed, which they contended had come off or broken; and to the placing of some pedestals under a few of the radiators, charging that the bolt caps were not mentioned in the lien account, and insisted that "the lien account is not a true and correct account, as required by the statute, in that it included various non-lienable items not properly included in the lien account," then set out the items as follows:
Appellant's Abstract, p. 20, Sept. 22, 1930
No. 1759 Type C Boiler for Burning Oil......... $26.40
Abstract, p. 26, Oct. 27,
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