Heltzell v. Chicago & Alton Railway Co.
| Decision Date | 25 January 1886 |
| Citation | 20 Mo.App. 435 |
| Parties | M. D. HELTZELL ET AL., Appellants, v. CHICAGO & ALTON RAILWAY COMPANY; KANSAS CITY, ST. LOUIS & CHICAGO RAILWAY COMPANY, and REED & TAYLOR, Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.
Reversed and remanded.
The case is sufficiently stated in the opinion of the court.
SAMUEL N. HOLLIDAY, and FORRIST & FRY, for the appellants.
I. Where the trial is by the court, and there is no dispute as to the facts, matters of law necessarily passed on by the court in arriving at its conclusion, are subjects of review in the appellate court, although no instructions were asked or given. Walter v. Ford, 74 Mo. 195; Henry v Bell, 75 Mo. 194. It is not material whether a part of the cement furnished was not used; but if it is, the evidence on that point is conclusive. Mechanic's lien laws " are highly remedial in their nature, and should receive a liberal construction." De Witt v. Smith, 63 Mo 263.
II. The plaintiff's account having all been furnished under one contract, they are entitled to a lien for all of it, even though one car load had been furnished ninety-seven days before the lien was filed. Stine v. Austin, 9 Mo 554; Viti v. Dixon, 12 Mo. 479; Livermore v. Wright, 33 Mo. 31; Allen v. Frumet, etc., Co., 73 Mo. 688; Fulton Iron Works v. North, etc., Co., 80 Mo. 265. This point has always been so held by our court, and it is impossible to do justice to the decision of the lower court in this case, and at the same time to confine one's self to the use of decorous language.
III. The court should have given plaintiff's lien for the sixty-six barrels of cement, because the evidence did not warrant the finding that it had not been used in the construction of the road, and because the cement was " furnished to a railroad company under or in pursuance of a contract with a contractor." Rev. Stat., sect. 3200; Morrison v. Hancock, 40 Mo. 561. The " " modifications," referred to in Garth v. Collier (60 Mo. 587), were not carried into the railroad law. In railroad liens it is not even necessary to make the contractor a party. Rev. Stat., sect. 3206.
MCFARLANE & TRIMBLE, for the respondents.
I. Persons who sell materials to a contractor are not entitled to a lien unless the material furnished is used in the construction of the railroad. Fitzpatrick v. Thomas, 61 Mo. 516; Schulenberg v. Insurance Co., 65 Mo. 298; Deardorff v. Everhart, 74 Mo. 37.
II. Persons who sell materials to a contractor, to be used in a railroad, are not entitled to a lien, unless they file their lien account within ninety days from the time the material was so furnished and delivered, and the fact that other material was subsequently furnished does not extend the time for filing the lien. Spencer v. Burnett, 35 N.Y. 97; Post v. Campbell, 83 N.Y. 281; Sandval v. Ford, 55 Iowa 461; Heltzell v. C. & A. R. R. Co., 77 Mo. 315.
III. The railroad lien law provides that the lien shall attach from the date of the commencement of the work, or from the time the materials were furnished or delivered; (sect. 3201, Rev. Stat.), and the lien must be filed within ninety days after the completion of the work, or after the materials were furnished. It is evident that the legislature intended fixing a time different from that fixed in the mechanic's lien law, under the interpretation given it by the courts, since different language is used. This law requires the account filed to give the dates at which the materials were furnished, which is not required by the mechanic's lien law, and which is quite significant.
This action is to enforce a lien against the Kansas City, St. Louis & Chicago Railway Company, for material furnished in its construction. The Chicago & Alton was the contractor to build it, and is now lessee thereof. Reed & Taylor were sub-contractors under the Chicago & Alton, and, as such, purchased the material here sued for and claimed as a lien.
The evidence showed that eighty barrels of the material were actually furnished, more than ninety days before plaintiffs filed their lien account. The evidence tended to show that sixty-six barrels of the material were not used in the construction of the road. The evidence further tended to show that all the material (Louisville cement), was furnished under one contract, at an agreed price, to be actually delivered as agreed therein.
The court tried the case without a jury, and refused to enforce the lien for the sixty-six barrels and the eighty barrels mentioned above, but did render judgment for the enforcement of the balance.
No instructions were asked by defendants, and the following were refused for plaintiff:
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