Hummel v. Field

• Decision Date: 07 December 1923
• Docket Number: No. 3413.,3413.
• Citation: 216 Mo. App. 136,256 S.W. 515
• Parties: HUMMEL v. FIELD.
• Court: Missouri Court of Appeals

256 S.W. 515

216 Mo. App. 136

HUMMEL v. FIELD.

No. 3413.

Springfield Court of Appeals, Missouri.

December 7, 1923.

Appeal from Circuit Court, Crawford County; W. E. Barton, Judge.

Action by R. H. Hummel against George H. Field. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. R. Lay, of Steelville, and J. R. Weinbrenner, of St. Louis, for appellant.

A. H. Harrison and Harry Clymer, both of Steelville, for respondent.

FARRINGTON, J.

Plaintiff recovered judgment in the trial court against the defendant in the sum of $968.30 as a result of a trial to the court sitting as a jury. The suit was based on an account alleged to have been made by the plaintiff in building a cottage for the defendant; the plaintiff being an architect and contractor. A mechanic's lien was filed with the circuit clerk, and a judgment is asked enforcing the mechanic's lien against the property of the defendant.

The defendant made a defense: First, that the lien was not a proper lien, such as is required by the statute. Second, that the plaintiff had undertaken to build the cottage for a specified sum, which, together with extras which had been ordered by the defendant, amounted to $3,200, and then pleads payment of this amount with the exception of $33.06, which last amount was tendered in court. The answer sets up a counterclaim asking damages.

The balance on the account sued for was $1,181.27, $400 of which is alleged to be due the plaintiff for his services and the balance amounts for which he as contractor was liable to firms who furnished material that went into the building of the defendant. The court allowed him in the judgment the amount of the claims for which he is liable and allowed his services for $200, making the amount of the judgment $968.30.

The defendant lost in the trial court on the defense that there was a special contract made for a certain amount for the building. The plaintiff's testimony tended to show that there was no contract for any particular amount, and that the defendant had from time to time ordered extras and was kept advised as to the amount the cost of the building was running, and plaintiff's evidence further showed that defendant ordered plaintiff to go ahead and put in the improvements and build the cottage as it was completed. The finding of the trial court on this issue precludes any consideration in this court, where there is evidence tending to support that finding.

The next point made by appellant that the lien as filed does not comply with section 7221, R. S. of 1919, as being a just and true account, in that it fails to properly itemize the material which is alleged to have been furnished, for example, an item is shown as follows: "Feb. 9, 1922, Robert Judson Lumber Co. $500." "Feb. 22, 1922, Paid L. Yengst, painter, on account, $300." "Mar. 17, 1922, Gravois Planing Mill, on balc. due, $287.60." This is a sufficient illustration to show that the account is not in the form as required, under the statute. See Planing Mill Co. v. Krebs, 196 Mo. App. 432, 193 S. W. 621; Graves v. Pierce, 53 Mo. 423; Mc-Millan & Parker v. Ball & Gunning Mill Co., 190 Mo. App. 340, 177 S. W. 315. We, however, are of the opinion that defendant is not in position to take advantage of this defect in the account for the reason that in his answer on the counterclaim he pleads that there are unpaid bills for material that are charges against the building in favor of Louis Yengst of $89.19, Robert Judson Lumber Company $480.16, Hy. Doerner $138.95, and to Geller, Ward & Hasner $60. By this allegation in the answer he admits...