House Wrecking Salvage & Lunber Co. v. Gartrell

• Decision Date: 10 June 1918
• Docket Number: No. 12946.,12946.
• Citation: 204 S.W. 52
• Court: Missouri Court of Appeals
• Parties: HOUSE WRECKING SALVAGE & LUNBER CO. v. GARTRELL.

204 S.W. 52

HOUSE WRECKING SALVAGE & LUNBER CO. v. GARTRELL.

No. 12946.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by the House Wrecking Salvage & Lumber Company against Sterne IL Gartrell. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

H. E. Colvin, of Kansas City, :or appellant. John F. Reinhardt and T. A. Witten, both of Kansas City, for respondent.

BLAND, J.

On October 5, 1911, the Trans-Atlantic Mortgage Trust Company entered into a written contract with t'efendant, Sterne H. Gartrell, for the sale of certain lots located in Kansas City, Mo. On December 21, 1912, said Trans-Atlantic Mortgage Trust Company reorganized under the name of the Modern Home Investment Company, and said contract was transferred to the latter. On September 1, 1915, defendant, Gartrell, leased said lots to Klaus & Clarkson for a period of six years. Klaus & Clarkson went into possession of the property and erected thereon a moving picture house. Plaintiff furnished certain material that went into said building. When Klaus & Clarkson failed to pay for this material, plaintiff filed a mechanic's lien for the amount due it, and brought this suit to enforce the same. The case was tried before the court without the aid of a jury. There was a judgment in favor of the plaintiff that he have a lien in the sum of $235.81, and interest, against the leasehold interest of Klaus ,& Clarkson in said lots, as shown by the lease from defendant to said Klaus & Clarkson, and that defendant likewise have a lien against the building. From this judgment, defendant has appealed.

Defendant makes the point that there was no evidence that plaintiff sold the material on the credit of the building. We are unable to agree with this co atention. The burden of proving this was upon plaintiff, but such a fact might be show a in the same manner as any other fact. Stove Co. v. Spear, 65 Mo. App. 87; Crane Co. v. Neel, 104 Mo. App. loc. cit. 184, 77 S. W. 766. Plaintiff's president testified that the material in question was delivered on the leased premises, and that he there saw Klaus, the manager of Klaus & Clarkson; that all the material went into the building; that Klaus & Clarkson were in possession of the premises during all the time the material was being delivered; and that they used and occupied the building after it was completed. These facts created an inference from which the trial court might find that the material was sold to Klaus & Clarkson with full knowledge on the part of plaintiff that they were putting it into that particular building on the premises occupied by them, and in the absence of anything to the contrary was sufficient to show that the sale of the material was made on the credit of the lien. Stove Co. v. Spear, supra.

There is no merit in defendant's attack on the judgment. Contrary to defendant's contention, the judgment creates no lien upon the reversion, but only upon the leasehold. Under...