Hydraulic-Press Brick Co. v. Green

• Decision Date: 02 February 1914
• Citation: 164 S.W. 250,177 Mo. App. 308
• Parties: HYDRAULIC-PRESS BRICK CO. v. GREEN et al.
• Court: Missouri Court of Appeals

164 S.W. 250

177 Mo. A. 308

HYDRAULIC-PRESS BRICK CO. v. GREEN et al.

Kansas City Court of Appeals. Missouri.

February 2, 1914.

Rehearing Denied February 28, 1914.

1. MECHANICS' LIENS (§ 111) — RIGHT OF MATERIALMEN — DELINQUENCIES OF CONTRACTOR.

Under Rev. St. 1909, § 8212, providing that one furnishing material for a building under contract with the proprietor's contractor shall have a lien therefor, they being used in the building, he is entitled to a lien for their reasonable value, regardless of defaults and delinquencies

of the contractor in performance of his contract with the proprietor.

2. MECHANICS LIENS (§ 47) — MATERIALMEN — MATERIAL USED — WASTE.

Such part of materials as are necessarily and reasonably wasted in the work are used in construction of a building, so as to entitle the materialman furnishing them to the contractor to a lien therefor, but not such as are unnecessarily and unreasonably wasted.

3. TRIAL (§ 82) — ADMISSION OF EVIDENCE — OBJECTIONS.

Where evidence is wholly extrinsic to any proper issue, and inadmissible for any purpose, a general objection is sufficient.

4. TRIAL (§ 79) — ADMISSION OF EVIDENCE — OBJECTIONS — REPETITION.

One need not keep renewing objections to evidence on which the court has ruled adversely.

5. TRIAL (§ 412) — OBJECTIONS TO EVIDENCE — WAIVER BY CROSS-EXAMINATION.

One does not waive his objections to evidence by inducing a repetition of the objectionable matter on cross-examination.

6. MECHANICS' LIENS (§ 157) — LIEN STATEMENT — MISTAKES.

Rev. St. 1909, § 8217, requiring a lien statement to contain a "just and true account of the demand," does not deprive a materialman, claiming for the amount furnished, in good faith and with reasonable cause believing it had all been used, of right to a lien for the part actually used.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by the Hydraulic-Press Brick Company against H. M. Green and others. From a judgment for defendants, other than defendant Green, plaintiff appeals. Reversed and remanded.

Botsford, Deatherage & Creason, of Kansas City, for appellant.

JOHNSON, J.

This is an action to enforce a mechanic's lien prosecuted by a subcontractor or materialman against the original contractor, the owner of the premises, and the trustee and beneficiary in a deed of trust on the property. The jury found for plaintiff against defendant Green, the contractor, and for the remaining defendants on the issues relating to the lien. Judgment was rendered accordingly, and plaintiff appealed. The defendant owner, Lucy Timmons, answered by attorney, but appeared alone at the trial, and conducted her defense with such success that she prevailed with the jury in the face of uncontradicted evidence that the material for which the lien was filed was sold and delivered to the contractor for use in the construction of the building at reasonable prices, and that practically all, if not all, of it was so used. Satisfied with her success, she made no appearance in this court either in person or by attorney; but, as she is the respondent, and the burden is on her opponent, the appellant, of showing that she obtained the judgment by means of prejudicial error, we shall give as full consideration to her side of the issues before us as we would had she appeared and presented the reasons on which she relies for an affirmance of the judgment.

Counsel for plaintiff, in their brief and argument, naïvely and unnecessarily attempt to refute the idea that the failure of their opponent to procure a lawyer to represent her at the trial gave them any advantage. "It might seem at first blush," they say, "that the plaintiff would have a great advantage under such circumstances; but we, as we have had the experience in trying a case against a woman who represents herself, agree with the learned trial judge, when he told Mrs. Timmons at the close of the trial that she won her own case, and that no two lawyers in this city could have won it for her." With some animation they ascribe their defeat to other causes than that of superior legal ability in their untrained but acute and aggressive antagonist, and we proceed to center our attention on these ascribed causes to see whether, in truth, they existed and afford sufficient ground for a reversal of the judgment.

At the trial plaintiff proved apparently beyond the possibility of successful contradiction that in good faith it sold and delivered brick of the value of $358.80 to the contractor for the improvement; that the material was so used; that only $8.80 of the account was paid; and that all necessary steps were taken for preserving and enforcing a lien against the property for the remainder. Beginning with the cross-examination of the contractor, Mrs. Timmons, to whom we shall refer as the defendant, directed her efforts principally to eliciting proof of delinquencies of the contractor in the performance of his contract with her. Counsel for plaintiff, by somewhat general objections, endeavored to prevent this digression, and to keep the inquiry within the issues made by the pleadings; but, on the overruling of these objections they seemed to lose heart, objected no more, and apparently lapsed into a condition of stupified quiescence.

By means of Socratic questions embracing their own answers put to both friendly and unfriendly witnesses, and of a torrential narrative of all her dealings with the contractor, defendant was suffered, without let or hindrance, to make the innocent plaintiff (whose sole offense consisted in furnishing the brick for her new house) suffer vicariously for all the misdeeds, mistakes, and negligences, real or supposed, of the contractor. The following quotation from the argument of counsel for plaintiff contains a partial recital of the wrongs defendant was allowed to show she sustained: "It should be noticed in this connection that it is conceded that there was a two-story flat building erected by the defendant Green for defendant Lucy Timmons, and that the brick of plaintiff, Hydraulic-Press Brick Company, were used in the construction of the walls of that building. Whether or not the roof leaked, and whether or not the brick were properly set in mortar, and whether or not the floor sagged, or whether or not defendant Green forced or tried to force defendant Timmons to put a loan on the property, or whether or not defendant Timmons was a widow, or whether or not defendant Timmons was forced to take possession and rent the building in order to get her income, or whether or not defendant Green guarded the building for a while with a gun as long as defendant Timmons, or whether or not Mrs. Timmons paid some of the bills with her private money, or whether or not rains came and washed away some of the sand that was furnished by other people than the plaintiff, or whether or not water soaked down the wall, or whether or not the plaintiff thought the credit of defendant Timmons, with whom it did not contract, would be good for a load of brick, or whether or not Mr. Green...