Heltzell v. Chicago & Alton R.R. Co.

• Decision Date: 30 April 1883
• Court: Missouri Supreme Court
• Parties: HELTZELL v. THE CHICAGO & ALTON RAILROAD COMPANY et al., Appellants.

77 Mo. 315

HELTZELL

v.THE CHICAGO & ALTON RAILROAD COMPANY et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Macfarlane & Trimble for appellants.

If all the materials are furnished under one contract, or one request, one indivisible lien will be created, but when under several contracts or requests, each separate contract becomes a separate lien. It was a question of fact, to be submitted under proper instructions, whether there was only one contract or whether each load was a separate contract. Stine v. Austin, 9 Mo. 554; Viti v. Dixon, 12 Mo. 482; Livermore v. Wright, 33 Mo. 31; Phillips Mec. Liens, §§ 324, 326; Merchard v. Cook, 4 Greene (Iowa) 115; Diller v. Burger,68 Pa. St. 432.

S. M. Smith for respondent.

HOUGH, C. J.

The Kansas City, St. Louis & Chicago Railroad Company is the owner of a railroad extending from Mexico, Missouri, to Kansas City, Missouri. The Chicago & Alton Railroad Company was the contractor for building said road, and is now the lessee thereof; Moraghan, Sims & Co. were sub-contractors under the Chicago & Alton Railroad Company for building a portion of said road; and this suit was brought against said sub-contractors, contractor and lessee, and owner, to recover the price of 460 barrels of cement sold by the plaintiffs to said Moraghan, Sims & Co. to be used in the construction of said road, and to establish a lien on said railroad therefor under the statute. The trial was before the court without the aid of a jury, and resulted in a verdict for the plaintiffs for $900.

The return of service of notice of the lien on one of the defendants, is as follows: “Served this notice in the city of St Louis on the 5th day of October, 1878, by delivering a copy thereof to R. P. Tansey, secretary of the Kansas City, St. Louis & Chicago Railroad Company, the president thereof being absent from the city and could not be found.” (Signed) “John Finn, sheriff city of St. Louis.”

Six cars of cement containing eighty barrels each, and one car containing sixty barrels, making in all 540 barrels were furnished by the plaintiffs to the sub-contractors, of which forty or fifty barrels were returned by said sub-contractors to themselves at St. Louis. The testimony shows that all the cement charged for in plaintiffs' account was used in the construction of the road, and that part thereof was furnished more than ninety days before the 10th day of October, 1878, the day on which the lien was filed. There was also testimony tending to show that each carload was a separate and distinct purchase.

The principal questions presented for determination relate to the service of notice on the Kansas City, St. Louis & Chicago Railroad Company, and the action of the court in refusing instructions numbered eight and ten, asked by the defendant, which are as follows:

8. If each bill of cement was furnished Moraghan, Sims & Co., by plaintiffs under a separate contract, then no such bill can constitute a lien on the railroad, unless it was furnished within ninety days next before the 10th day of October.

10. If the cement was ordered in car-load lots, each order being separate and independent of any other, and in like manner each invoice became due and payable upon...