Kasper v. St. Louis Terminal Railway Co.

• Decision Date: 14 April 1903
• Citation: 74 S.W. 145,101 Mo.App. 323
• Parties: CHARLES KASPER, Respondent, v. ST. LOUIS TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

74 S.W. 145

101 Mo.App. 323

CHARLES KASPER, Respondent, v. ST. LOUIS TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 14, 1903

Appeal from St. Louis County Circuit Court.--Hon. J. H. McElhinney Judge.

AFFIRMED.

Judgment affirmed.

John H Overall and Wm. G. Schofield for appellant.

(1) It will be observed at a glance at the petition that, although plaintiff in a way does ask for a lien, the idea conveyed and prevalent throughout the whole of plaintiff's pleading is a personal judgment against the defendant. By section 1057, Revised Statutes 1899, it is provided that whenever any contractor . . . shall be indebted to any . . . laborer, or other person, who shall do or perform any work or labor upon . . . said road, such laborer may give notice of such indebtedness to said company and said company shall thereupon become liable to pay such laborer the amount so due, and action may be maintained against said railroad therefor; such notice shall be in writing and shall be given by such person within twenty days after the performance of the labor. The petition filed in this cause does not recite the giving of such a notice, but does allege the service of a copy of the accounts within "ninety days after the completion of said work." (2) The specific objection to the lien accounts filed in this case is that they are not "just and true" accounts within the meaning of section 4241. (3) If a lien claimant intentionally fails to give credit for all sums to which the defendant is entitled to credit, then under the provisions of section 4247, as we construe it, he is not entitled to a lien for any part of his claim.

Charles Kasper for respondent.

(1) The final particular objection to the petition that "there is no averment that the prices charged were reasonable, or that there was anything due and unpaid at the institution of the suit," we answer, first, by referring the court to the allegation in the petition that the work was done in the employ of "Allen Paynter, under a contract," etc and "then, under said contract with said Paynter," etc.; and, secondly, it alleges also, among other things, the filing of the liens containing "a just and true account of the amount due," etc. This is a particular province of the lien-claim, itself. Furthermore, the petition alleges all the acts and facts required by section 4241 "as necessary for securing a lien," and thus, in the respects complained of, this was fully sufficient. R. S. 1899, sec. 4246; Hydraulic Press Brick Co. v. Taggart, 76 Mo.App. 353. (2) With respect to the part of the second assignment of errors, which claims that the accounts are what are termed "lumping accounts," or too indefinite; we refer the court, first, to an account of "work of erecting of viaduct," in Iron Works v. Ry. Co., 141 Mo. 233.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

--This is an action to enforce a lien against the roadbed and property of the St. Louis Terminal Railway Company, for manual and team labor furnished in the construction of the road. The petition contains nine counts, the first of which is to recover for labor done by the respondent, Charles Kasper, in person, and the other eight counts for the labor of other men who aided in making the roadbed and assigned their demands to Kasper after their lien accounts had been filed. The men, besides Kasper, whose work enters into this action are W. J. Jenkins, Edward Chivington, M. A. Blount, J. P. Davis, M. B. Walter, D. H. Coffee, John Brady and William Beebe, some of whom did only manual labor while others furnished wagons and teams. They all worked under a subcontractor by the name of Allen Poynter, who was himself a subcontractor under Michael Hanick, who had a contract with the appellant company for grading its roadbed. The service of those hands was rendered on different days from early in March to May, 1902, and that they all did the work and earned the wages embraced in the petition, was proven beyond controversy. Kasper's lien, however, was filed too late, so judgment was given in favor of the appellant on the first count of the petition but in favor of the respondent on all the other counts, the total amount of the judgment being $ 649.16, which sum was declared and established as a lien against certain property of the railroad company described in the judgment.

An appeal was prosecuted to this court.

One point raised by the appellant is that the petition discloses that the purpose of the action was to obtain a personal judgment in favor of the respondent against the railroad company instead of a judgment to enforce a lien against the railroad company's property for the wages Poynter, the subcontractor, had failed to pay Kasper and the other men above mentioned. The petition describes the portion of the roadbed of the railroad company on which the work was...