Harry Cooper Supply Co. v. Gillioz

• Decision Date: 16 June 1937
• Docket Number: 5560
• Citation: 107 S.W.2d 798
• Parties: Harry Cooper Supply Company, Respondent v M. E. Gillioz, Appellant, Rolla National Building Company, a corporation, Dan McDonald, Trustee and J. B. McCarty Company, a corporation, Defendants -- not appealing
• Court: Missouri Court of Appeals

107 S.W.2d 798

Harry Cooper Supply Company, Respondent v. M. E. Gillioz, Appellant, Rolla National Building Company, a corporation, Dan McDonald, Trustee and J. B. McCarty Company, a corporation, Defendants -- not appealing

No. 5560

Court of Appeals of Missouri, Southern District

June 16, 1937

Not to be published in state reports.

Appeal of N. E. Gillioz, from the Circuit Court of Phelps County. Honorable J. H. Bowron, Judge.

Affirmed

James E. Sater, of Monett, Roland L. Johnson, of Rolla and Sam Wear, of Springfield, for Appellant.

Breuer and Northern, of Rolla and Mann, Mann and Miller, of Springfield, for Respondent.

Perry T. Allen, P. J. Smith, Fulbright, JJ., concur.

OPINION

Allen P. J.

This is the second appeal of this case. The cause was first instituted in the Circuit Court of Phelps County, returnable to the December Term, 1931. On the 12th day of December, 1932 the cause went to trial, resulting in the plaintiff taking an involuntary nonsuit at the conclusion of all of the evidence, as to the defendants, M. E. Gillioz and Rolla National Building Company, a corporation. Judgment was taken by the plaintiff against J. B. McCarty Company for the sum of $ 4,980.65. Said cause on appeal by the plaintiff, was reversed and remanded, and is reported in 66 SW (2) 591.

On the second trial of this cause, plaintiff filed its amended petition, upon which the cause was tried and M. E. Gillioz filed separate amended answer. The jury returned a verdict for the plaintiff in the sum of $ 4,560.34. Defendant, Gillioz, filed his Motion for New Trial, which was by the court overruled, and the cause is again before us on appeal by defendant, Gillioz.

On the first appeal in this issue (66 SW (2) 591) this court held, and we think settled the issue, that the facts made a case for the jury. The jury passed on the facts and awarded respondent a verdict, that it have a lien for the enforcement of its judgment against the defendant J. B. McCarty Company, to the extent of $ 4,560.34, being the principal amount of the balance due on respondent's account against the defendant, J. B. McCarty.

The testimony in the case, now before us, is to the effect that the Harry Cooper Supply Company, of Springfield, was, in 1930 and 1931 in the wholesale plumbing business; that the J. B. McCarty Company was a corporation in the plumbing contracting business, with headquarters in Springfield; that the defendant, M. E. Gillioz, was in the general contracting business, and that the Rolla National Building Company was a corporation of Rolla, Missouri, and the owner of the premises involved. That the latter company, in 1930 made a contract with M. E. Gillioz for the erection of a hotel known as the Edwin Long Hotel, at Rolla, upon the premises described in plaintiff's petition, and in its lien account; that M. E. Gillioz sublet the plumbing and heating for the hotel building to the defendant, McCarty, who in turn purchased his supplies on a running account for the building from the plaintiff, Cooper Supply Company. That the hotel was opened for business on March 12, 1931, but was not completed or accepted as complete at that time; that the architects employed by the owner to manage and supervise the construction made numerous requirements then and thereafter of the contractor and various sub-contractors on the job, and in particular of the defendant, J. B. McCarty Company. That pursuant to these requirements and in order to complete its contract, the J. B. McCarty Company did additional work on the hotel on May 12, 13 and 14, 1931, and at that time reset and completed the installation of various equipment to the hotel and installed equipment sold to the McCarty Company for use on the hotel by the plaintiff, Cooper Supply Company, including a number of brass plugs, china bolt caps and radiator pedestals.

The evidence further shows, and it is undisputed, that pursuant to due notice, given and received, respondent filed its lien statement in the office of the Circuit Clerk of Phelps County, on September 5, 1931, and within four months after its account accrued against the building and premises. The lien amount filed by respondent was fully itemized, setting out in minute detail the articles sold and used in the building and contained in the second count, and the dates that said articles were sold and delivered, showing a great number of articles with the price of each article separately set forth, and constituting a total charge of $ 15,527.09, against which there were credits of something over $ 10,000.00; over $ 9,000.00 of which were cash credits, leaving the principal balance due of $ 4,560.34. This lien statement, preceding the itemization of the account, set out "that the last item of said materials so furnished and sold and delivered and used in said improvement, erections and buildings, were shipped on the 7th day of May, 1931, and thereafter used in and about said construction work." And following the itemizations, further set forth: "That the demand accrued within less than four months prior to the date of the filing of this lien." Such, under the law of this state, is equivalent to the statement that the last item of materials used in the building was installed therein within four months preceding the filing of the lien account.

The record further discloses that at the prior trial of this case, final judgment was rendered against the defendant, J. B. McCarty Company, and in favor of plaintiff, for an amount larger than the present verdict, sustaining a lien, which included the interest; that this is the appeal of the defendant M. E. Gillioz, who, in addition to being a general contractor, holds a note secured by deed of trust on the premises for a large amount.

It is true the record discloses that all the items contained in the invoice of May 7th, were not used in the building in question, and also shows a number of items of tools, insignificant in comparison to the whole account were included in the account, but as above stated, discloses that there were cash credits, which paid for all of such items, so that they are not a part of the balance for which a lien is sought. The evidence further discloses as to the invoice of May 7th, that so far as plaintiff knew, and until long after the lien was filed, the items contained in the May 7th invoice, were bought for and used in the hotel, and that this fact was never questioned until long after the lien account was filed, though statements and demands for payment, containing the items, had been sent from month to month to the defendant, J. B. McCarty Company. Preceding the last trial, plaintiff filed an amended petition, specifically giving credit to the defendants for one item of $ 311.84 being credit memorandum for returned merchandise and for $ 82.49, being a credit memorandum for a freight allowance on a boiler, which credits did not appear on the mechanic's lien statement.

The testimony was that a separate account and ledger was kept on the Edwin Long Hotel job in question; that McCarty had a number of other large jobs he was building, and for which the plaintiff was selling him equipment, most of these other jobs being kept in one general ledger account. That at the time these credit memorandums were issued, credit was given to J. B. McCarty Company, and that, through mistake, they were credited to the general ledger account, instead of the account in issue, and that this was not discovered until long after the lien was filed and the suit was filed, the memorandums having been filed away; that they were discovered at a later time, when the general account was being checked over, and then immediately transferred and credited to the proper account, the account in issue having been so credited prior to the first trial of this case. The record of the first trial contained a great deal of oral testimony about the $ 311.00 credit, whereas the $ 82.00 credit had not been singled out, but it was shown in evidence it had been credited prior to the first trial, and the balance due and asked for at the first trial, and the balance stated due and asked for at the last trial was the same.

Appellant contends that under the evidence in this case, by the testimony of witness, J. B. McCarty, he was entitled to have submitted to the jury the question of whether or not the McCarty Company made payments to the Cooper Supply Company sufficient to discharge this account, with directions that such payments be applied on this account. From a reading of this testimony we think it could not be ascertained as to what payments he directed the application of, or as to in what instance he even informed the Cooper Supply Company he was getting money from the appellant, Gillioz. Such being true, there was no submissible issue made, and in fact his testimony nullified itself and was of no legal effect.

This court, in its previous decision (66 SW (2) 591), held "It is true that several items appeared in appellant's account that, of themselves, would not be lienable. However, it is, we think, properly urged by appellant, that the payments made on the whole account in the total amount credited of more than $ 10,000.00 applied first to unsecured or non-lienable items and next to the oldest items of the account, when so applied fully satisfied the items questioned by respondents and left only unquestioned and unquesionable lienable items in the statement."

The evidence on the second appeal was no different as to these payments and credits than on the first, and it is still unquestionable that the balance asked for is for lienable items; unquestionable that no issue of fact was made on that score. This court, in its prior decision settled the law as to that, with this language: "It is our opinion that the...