Hayden v. Wulfing
| Decision Date | 10 November 1885 |
| Citation | 19 Mo.App. 353 |
| Parties | T. F. HAYDEN ET AL., Respondents, v. CHARLES WULFING, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.
Affirmed.
LEO RASSIEUR and DEXTER TIFFANY, for the appellant: There is no proper account filed. An account should be so stated that the defendant may be advised what is claimed for each item, so that he may make a defence. He is entitled to know, when it is claimed the items were furnished and which item was furnished last, and when, so that he may make his defence, if that item was furnished more than four months before the filing of the lien. Lowis v. Colter, 6 Mo.App. 55; Cole v. Barrow 8 Mo.App. 511; Heinrich v. Cardt G. S., 8 Mo.App. 588.
TAYLOR & POLLARD, for the respondents: It is immaterial that the plaintiff was a surety on the contractor's bond. Hartman v. Berry, 56 Mo. 487; Atwood v Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462; Bond v. Worley, 26 Mo. 253.
In this action, which was brought by sub-contractors to enforce their mechanic's lien against the property benefited by the work and materials furnished, the court below rendered judgment against the contractor and against the property.
From this judgment the owner alone appealed, and now assigns for errors, (1) that the court improperly struck out part of his answer; (2) that the court improperly admitted the lien account in evidence against his objections; and, (3) that the plaintiff's petition states no cause of action sufficient to charge the property, because it fails to aver that it was filed and the suit brought within ninety days after the filing of the lien.
The part of the defendant's answer which was stricken out averred that Thomas F. Hayden, one of the plaintiffs, was one of the parties to the original contract under which the houses were erected, and by his contract agreed to protect the defendant, Wulfing, from all mechanic's liens against the property. This averment may have been literally true, and yet admits of the construction that the plaintiff was a mere surety for the original contractors, a fact which was subsequently established by proof upon the trial. As it has been decided in this state in Hartman v. Berry (56 Mo. 490), that the mere fact that one is surety upon a bond given to the owner, to protect the property from liens of mechanics, does not estop him from filing and prosecuting such lien himself, we can not see in what manner the defendant was prejudiced by this action of the court. There is nothing in this case to distinguish it in principle from the case above referred to. We must, therefore, conclude that the plaintiff's first point is not well taken.
The lien paper admitted in evidence, contains the following account:
" ST. LOUIS, MO., July 31, 1884.
A J. Cramer & Company, Dr. to T. F. Hayden and J. A. Hayden:
Work done and materials furnished on roof of solid row of four dwellings, numbered 1936, 1938, 1940, and 1942, Papin street, St. Louis, Mo., situated on the south side of said street, in block No. 2282, viz.:
| 3840 feet slating, at $10.50 per square | $403.20 |
| 64 feet galvanized iron for ridge, at 15 cts | 9.62 |
| 287 1/2 lbs. lead for flashing | 17.20 |
| $430.02" |
There is nothing to show either, in the account of the lien paper, at what exact date the work and materials were done and furnished, unless the date at the head of the account (July 31, 1884), furnishes such an indication. The affidavit attached to the account recites that the demand accrued within four months prior to the filing of the lien. The lien was filed November 12, 1884.
When the account was offered in evidence the defendant objected to it, on the ground that it did not show the dates at which the various items were claimed to be furnished. This objection was overruled, and the defendant saved his exception.
We assume, for the purpose of this argument, that the date at the head of the account refers to the day when the account was closed or rendered, and not to the day when its various items were furnished; and this brings us face to face with the proposition, whether the incorporation of the dates at which its various items were furnished, into the account filed, is an essential prerequisite in all cases to its validity as a just and true account, within the meaning of the mechanic's lien act. The exact question has never been passed on by our courts.
In McWilliams v. Allan (45 Mo. 574), the court said " An account is a detailed statement of mutual demands, in the matter of debt and credit, between parties arising out of contract," and that this definition expresses the sense in which the term is used in the mechanic's lien law. Both in that case and the subsequent case of Graves v. Pierce (53 Mo. 428), it was decided that the " " account," meant by the statute, requires something more than a mere statement of the balance due. In Lowis v. Cutter (6 Mo.App. 55), this court held that the account must furnish its own explanation, and that the following statement, " to painting, glazing, and varnishing, as per proposition," the proposition having been made to a third ...
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