Howard v. Jones

• Decision Date: 31 March 1863
• Citation: 33 Mo. 583
• Parties: RICHARD S. HOWARD et al., Respondents, v. BRANNOCK JONES et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 583

RICHARD S. HOWARD et al., Respondents,

v.BRANNOCK JONES et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

Lackland, Cline & Jamison, for respondents.

Taussig & Rombauer, for appellants.

BATES, Judge, delivered the opinion of the court.

This is a suit by Howard & McBride, partners, for the enforcement of a mechanic's lien upon a building in St. Louis. It was brought against Jones, as a contractor for erecting the building, and “The People's Savings Institution,” as the owner of it.

The claim was for furnishing and laying brick, for turning arches over coal-vaults and water-closets, and for one-half of measuring fees for the work, amounting to nine hundred and forty-seven dollars and twenty-two cents, with a credit for six hundred and three dollars and fifty-four cents, leaving a balance of three hundred and forty-three dollars and sixty-eight cents. That for said balance Jones executed to the plaintiffs his note dated August 5, 1859, payable two months after date, which was stated to be filed to be cancelled.

The petition stated that the account accrued on the 16th day of July, 1859.

Jones answered, denying that he was indebted to the plaintiffs for $343.68 for work and labor done and material furnished as in said petition, but averred that the note mentioned in said petition was accepted by plaintiffs as a full payment and discharge of all his indebtedness on the account in the petition mentioned, and was a release of their lien on the ground and building described in the petition.

The answer of the People's Savings Institution put in issue (among other things) the plaintiffs' account as set out in the petition, and claims that the note mentioned in the petition was accepted by the plaintiffs in payment and satisfaction of all indebtedness of Jones to the plaintiffs.

The case was tried by the court, and the bill of exceptions contains all the evidence given.

The plaintiffs proved by a brick-maker that he furnished to the plaintiffs bricks at the building mentioned, but did not know how many; that he had a settlement with the plaintiffs, when they were found indebted to him three hundred and fifty-three dollars and fifty-four cents, and that the plaintiffs transferred to him the note described in the petition, and that he understood from Jones that the note was given for bricks furnished by plaintiffs for the building, and that he got the note discounted at the Mechanics' Bank, and knew no more about it. And he identified the note, (which was for $353.54, a sum different from that mentioned in the petition, but which difference all the parties seem to have disregarded.) The plaintiffs also proved that the note was protested for non-payment, and afterwards taken up by them. The plaintiffs proved the filing of their lien.

The defendants gave in evidence a receipt of plaintiffs, as follows:

“Received, St. Louis, 5th August, 1859, from Brannock Jones, his two notes of even date herewith, one payable one month after date, for the sum of three hundred and fifty-three dollars and fifty-four cents, and the other payable in two months for a like sum, being payment in full to date. $707.08. Howard & McBride.”

The defendant, “The People's Savings Institution,” asked the following instructions, which were refused:

1. Plaintiffs are not entitled to recover against defendant, Jones, for the last two items charged for in their account, there being no evidence to support these parts of their claim.

2. The plaintiffs are not entitled to recover against defendant Jones, on the evidence having failed to prove either that the number of bricks charged for were delivered, or the...