Hydraulic Press Brick Co. v. R. B. Winn Contracting Co.

• Decision Date: 02 March 1920
• Docket Number: No. 15872.,15872.
• Parties: HYDRAULIC PRESS BRICK CO. v. R. B. WINN CONTRACTING CO. et al.
• Court: Missouri Court of Appeals

219 S.W. 681

HYDRAULIC PRESS BRICK CO. v. R. B. WINN CONTRACTING CO. et al.

No. 15872.

St. Louis Court of Appeals. Missouri.

March 2, 1920.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Consolidated actions by the Hydraulic Press Brick Company against the R. B. Winn Contracting Company and others. From judgment for plaintiff, defendants F. L. Dittmeier and others appeal. Affirmed.

Peers & Peers, of St. Louis, for appellants.

Eliot, Chaplin, Blayney & Bedal, of St. Louis, for respondent.

BIGGS, C.

Plaintiff originally brought two suits to enforce its alleged liens as a materialman in furnishing brick for two buildings erected on separate pieces of property in the city of St. Louis. The parties to both suits being identical and the issues the same, by consent the causes were consolidated and tried as one case.

At the close of plaintiff's evidence the owners of the fee filed a demurrer, which was overruled by the court. Defendants offered no evidence, and thereupon judgment was rendered in favor of plaintiff, making same a lien upon the properties described in the petition, from which judgment the owners have appealed to this court, contending that the evidence fails to show that the brick was furnished under or by virtue of any contract with the owner of the property, or his agent, trustee, contractor, or subcontractor, as required by the mechanics' and materialmen's lien statute, being section 8212 of the revision of 1909.

The cause was tried by the court, a jury being waived. No instructions were asked except defendants' instruction in the nature of a demurrer to the evidence.

Defendants' counsel in their brief say:

"The evidence in this case discloses that the plaintiff had a contract with Winn, and that it furnished the brick under that contract; and that Winn had a contract with Hartman, but the evidence fails to disclose any proof that Hartman had a contract with the owner."

No controverted question of law arises; it being simply a question of fact as to whether Hartman, the alleged contractor, had a contract for the erection of the buildings with the owner, or was the agent of the owner in erecting the buildings so as to bind the owner's title.

There was no written contract between Hartman and the owners, but plaintiff contends the evidence shows a verbal contract, and the trial court so found. This being an action at law, if there was substantial evidence to support the finding, we are not at liberty to disturb the judgment, and on consideration of a demurrer to plaintiff's evidence every reasonable intendment to be drawn from the evidence must be indulged in favor of the plaintiff. Woehner v. Riddle & Bro. Casket Co. (St. Louis Court of Appeals) 196 S. W. 381, and cases therein cited.

We find ample evidence in the record to support the finding of the trial judge, and that evidence is: (1) The fact that Hartman, after being authorized by defendant Dittmeier, officer of and in charge of the business of the defendant American Real Estate Building & Investment Company, owner of the properties, took out the building permits for the erection of the buildings, in which permits he named Dittmeier as the owner and himself as...