Indiana Powder Co. v. St. Louis, K. C. & C. R. Co.

• Decision Date: 02 January 1906
• Court: Missouri Court of Appeals
• Parties: INDIANA POWDER CO. v. ST. LOUIS, K. C. & C. R. CO.

92 S.W. 150

116 Mo. App. 364

INDIANA POWDER CO. v. ST. LOUIS, K. C. & C. R. CO.

St. Louis Court of Appeals. Missouri.

January 2, 1906.

RAILROADS—CONTRACTORS—LIENS—STATUTES.

Where plaintiff sold powder to a contractor with which to quarry rock from the contractor's own land to be broken and delivered to defendant railroad company on its cars at a certain price per cubic yard, and the purpose for which and the place where the rock was to be used, if at all, by the railroad company, was not stated in the contract, complainant was not entitled to a lien on the railroad for the value of the powder so furnished under Rev. St. 1899, § 4239, giving a lien to all persons who furnish material to any railroad, etc.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the Indiana Powder Company against the St. Louis, Kansas City & Colorado Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

On May 29, 1903, the defendant, the Shutt Improvement Company, a corporation, made a contract in writing with the defendant railroad company, whereby the Shutt Improvement Company agreed to furnish the railroad company 200,000 cubic yards of crushed rock on the line of defendant's road in St. Louis county, and if the railroad should elect, to crush 200,000 more cubic yards, on its line of road in Osage county, and load the same on defendant's cars, for which the railroad company agreed to pay 50 cents per cubic yard, and to grant it certain free transportation over its road. The Shutt Improvement Company installed a crushing plant at Mona, in St. Louis county, and one at Eldon, in Osage county, both on the line of defendant's road, and proceeded to quarry rock from its own premises and crushed and loaded it on cars furnished by the railroad company. The rock crushed at Mona was used by the railroad company as ballast on that portion of its roadbed, running through St. Louis and Franklin counties, which had been constructed and in operation for about three years. The crushed rock delivered at Eldon was used as ballast on recently constructed roadbed in that neighborhood. The plaintiff, in one contract, sold to the improvement company $3,790.35 worth of powder and dynamite, delivered in carload lots, as ordered by said company. At the time the suit was commenced there was a balance of $1,654.35 due on the account. After the suit was brought, but before trial, the improvement company paid $200 on the account. All the powder and dynamite furnished by plaintiff was used by the improvement company for blasting out rock to be crushed at Mona and Eldon. On July 4, 1904, plaintiff filed, in the office of the clerk of the circuit court of St. Louis county, a complete statement of its account with the Shutt Improvement Company and its declaration, supported by affidavit, that it claimed a lien upon the railroad for the balance due on the account. Due and timely notice was given the defendant railroad company of the filing of the lien account. The suit is to foreclose this lien and for a personal judgment against the Shutt Improvement Company. The petition and the declaration for a lien both state that the lien account was for material furnished by plaintiff for use in the construction of the road under a contract with the Shutt Improvement Company, "which was the original contractor with said St. Louis, Kansas City & Colorado Railroad Company for the doing of the work and labor and furnishing the materials for the construction of the road, including the materials furnished by it the Indiana Company." At the close of the evidence the defendant railroad company moved the court to declare as a matter of law that the plaintiff was not entitled to a lien upon the road, and that the issues should be found in favor of the railroad company. The court refused the motion and rendered a personal judgment (the issues having been submitted to it) against the Shutt Improvement Company, and a judgment foreclosing plaintiff's lien against the railroad company. The defendant railroad company appealed.

W. F. Evans and A. H. Bolte, for appellant. Kinealy & Kinealy, for respondent.

BLAND, P. J. (after stating the facts).

1. The Shutt Improvement Company had no contract to either construct or improve the railroad or any part of it. Its contract was to crush its own...