Huttig Sash & Door Co. v. Ray R. Rosemond Co.

• Decision Date: 05 December 1933
• Docket Number: No. 22479.,22479.
• Citation: 65 S.W.2d 180
• Court: Missouri Court of Appeals
• Parties: HUTTIG SASH & DOOR CO. v. RAY R. ROSEMOND CO., Inc., et al.

65 S.W.2d 180

HUTTIG SASH & DOOR CO. v. RAY R. ROSEMOND CO., Inc., et al.

No. 22479.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Appeal from Circuit Court of St. Louis; Albert D. Nortoni, Judge.

"Not to be published in State Reports."

Suit by the Huttig Sash & Door Company against the Ray R. Rosemond Company, Inc., and others. From so much of the judgment as denied the mechanic's lien, plaintiff appeals.

Affirmed.

Grant & Grant, of St. Louis, for appellant.

Dunbar & Dubail, Bryan Wilson, and Willard H. Guest, all of St. Louis, for respondents.

KANE, Judge.

This is a suit to maintain a mechanic's lien on real estate located at 4966 Parker avenue, in the city of St. Louis, Mo., for the sum of $933.55, for millwork furnished by appellant (plaintiff) to respondent (defendant), Ray R. Rosemond Company, Incorporated, under a written contract in which Ray R. Rosemond Company, Incorporated, is designated as the owner of the property. The case was tried by the court, a jury having been waived.

Appellant recovered a personal judgment against the principal respondent, Ray R. Rosemond Company, Incorporated, by default for the full amount sued for, with interest from November 15, 1929, the court entering judgment denying a mechanic's lien against the property described, the title to which at the time of trial was in Louise O. Simon, wife of Samuel P. Simon. From the judgment of the circuit court denying the mechanic's lien, appellant duly appeals.

The petition is in the conventional form of a materialman's mechanic's lien, and contains all of the usual allegations of that kind of a case. It sets out an itemized statement of the materials furnished of the total reasonable value of $933.55, the first item of which is dated June 26, 1929, and the last two items dated November 5, 1929. The crux of the case is whether the lien account accrued on or after November 15, 1929, as the lien was filed with the clerk of the circuit court on May 15, 1930, as required by section 3161, Revised Statutes 1929 (Mo. St. Ann. § 3161, p. 4986).

It will be unnecessary to discuss respondent's objections to the sufficiency of the record, in view of admission made by counsel for appellant in his argument, as follows: "The only question left in the case is whether or not under the facts the plaintiff was entitled to a mechanic's lien, and the only issue on that question was whether or not the lien account accrued on November 15th or on a prior date. Appellant contends that the evidence on that issue was such that the Court erred in denying the lien and that the finding of the Court in favor of the defendants, Simon, was not supported by any substantial evidence whatever."

This contention has no merit.

D. J. Costello, witness for appellant, in charge of its record of sales, testified as to the method of handling an order for materials after being received by his department, stating that, after receipt of an order, a shipping ticket is made out in duplicate by his department, the original of which goes back to the warehouse department, where a dray ticket is made out in duplicate, the original shipping ticket remaining in the warehouse until delivery is made, when it is returned to the office and invoice is then made out. When asked to explain the dray ticket (last page of plaintiff's Exhibit J) with the notation "Hold till call," he testified: "When that order was phoned in we entered it to be added to the general contract to be delivered when they called for it. They originally phoned in and said they were going to call for it about November 2nd. We informed the shipping department that they were to call to get the door originally, but later on they phoned in and said to hold the door, as they would call for it, which they did call for it on November 15th." Witness was shown Exhibit C, which is the ledger sheet of appellant, and his attention called to the last charge on said sheet of November 5th, and stated that it covered one mirror door. He further testified: "Q. Do you know why that is dated November 5th and the dray ticket November 15th? A. Yes, they were going to call for it, and we got the door ready and we turned the shipping ticket in to the office in accordance with their instructions down there, because the door was going to be called for that day, but they called us up about the door later on. Naturally the charge was made before delivery was made."

On cross-examination witness Costello further testified that dray tickets were made out original and copy, original ticket remaining in the warehouse until after delivery was made; that then the dray ticket and original shipping ticket were returned to the office separately and the invoice was then made out; that all tickets were then placed together; further that "the invoice attached to Exhibit J was made out November 5th in the billing department, subsequent to delivery."

On recross-examination the witness testified that the basis for his statement that delivery was made on November 15th was that the dray ticket showed that it was delivered on November 15th; that the dray ticket was in McCarthy's handwriting and the notation "Del 11/15" was in the handwriting of Mr. Charles Wiedner; that he could identify the handwriting; that the dray ticket was made up in the usual course of business; that Mr. Wiedner was the shipping clerk in charge of that part of appellant's business.

Charles Wiedner, witness for appellant, testified that he was shipping clerk for the appellant, and had been so employed for twenty-eight years; that his duties were checking up loads, giving them to the different loaders; checking up the material before it went to the trucks, and seeing that everything was delivered and properly signed for, and when his tickets came back to put his check on the tickets and return them to the main office. He testified from viewing the mechanic's lien statement that he examined it, and the records of the shipping department covered the items on the job at 4966 Parker avenue; that the first delivery was made on June 26, 1929; he produced the last delivery ticket, and testified from it that the last item was delivered on November 15, 1929, and that all of the items in the mechanic's lien statement were delivered to the house, 4966 Parker avenue, between June 26, 1929, and November 15, 1929. On cross-examination he testified that some of the records were in his handwriting, but not all of them; that...