Kittrell v. Hopkins

• Decision Date: 31 October 1905
• Parties: KITTRELL, Respondent, v. HOPKINS, Appellant
• Court: Missouri Court of Appeals

90 S.W. 109

114 Mo.App. 431

KITTRELL, Respondent, v. HOPKINS, Appellant

Court of Appeals of Missouri, St. Louis

October 31, 1905

Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.

From the order of the court sustaining a motion filed by plaintiff to set aside a voluntary nonsuit, the defendant appealed.

AFFIRMED.

Judgment affirmed.

Stephen C. Rogers for appellant.

(1) The lien paper filed by plaintiff, and upon which this action is bottomed, wholly fails to comply with the requirements of the law. It must state all the items, so as to be able to determine therefrom if same are lienable. Mitchell Planing Mill Co. v. Allison, 138 Mo. 56; Lumber Co v. Nelson & Haydel, 71 Mo.App. 122; Cahill, Collins & Co. v. Orphan School, 63 Mo.App. 28; Reitz v Ghio, 47 Mo.App. 287; Nelson v. Withrow, 14 Mo.App. 276; Edgar v. Salisbury, 17 Mo. 271; Bruns v. Capstick, 46 Mo.App. 397; Abbott v. Hood, 60 Mo.App. 196; Dallas v. Brown, 60 Mo.App. 493; Dwyer Brick Works v. Flanagan, 87 Mo.App. 348. (2) Materials furnished under distinct contracts cannot be mingled in one account and a lien obtained for the whole. Badger Lumber Co. v. Stepp, 157 Mo. 384; Livermore v. Wright, 33 Mo. 31; O'Connor v. Railroad, 111 Mo. 185; Flanagan v. O'Connell, 88 Mo.App. 1.

Francis M. Kittrell, pro se.

Thomas P. Bashaw for respondent.

(1) "The rule that the blending of non-lienable items with those which are lienable, unless the items can be segregated by a mere inspection of the lien paper, applies only where the mechanics or materialman knew that under no circumstances could the objectionable items sustain a lien." Eau Clare Lumber Co. v. Wright, 81 Mo.App. 535. (2) "It is sufficient under the statute that there be but one account filed though the material was furnished under more than one contract." Grace v. Nesbit, 109 Mo. 9; Kearney v. Wurdeman, 33 Mo.App. 447. "Where a dwelling was erected under a written contract, and other buildings on the same lot under a parol contract, they were both properly joined in the same notice of lien. The fact that they grew out of separate contracts can have no effect upon its validity, so long as both claims are upon the same property." Fitch v. Baker, 23 Conn. 563. (3) Any other construction would defeat the purpose of the statute, which is highly remedial and should be liberally construed. The decisions of our courts have firmly established this doctrine. Lumber Co. v. Reader, 81 Mo.App. 337; Kick v. Doerste, 45 Mo.App. 134; Walden v. Robertson, 120 Mo. 38; Deardoff v. Roy, 50 Mo.App. 70; Hill v. Gray, 81 Mo.App. 337; Page v. Betts, 17 Mo.App. 337; Hicks v. Schofield, 121 Mo. 381; Fruin-Bambrick Co. v. Jones, 60 Mo.App. 1.

OPINION

BLAND, P. J.

For the purpose of preserving his mechanic's lien upon defendant's house and lot, in the city of St. Louis, plaintiff, on February 13, 1904, made out and verified by proper affidavits the following amended declaration, which was duly filed in the office of the circuit clerk in the city of St. Louis:

"Now, at this day comes Francis M. Kittrell, and with a view to avail himself of the benefit of the statutes relating to mechanics' liens, files the account below set forth for work and labor done, and materials furnished by him under and by virtue of contract with George D. Hopkins, upon, to and for the buildings and improvements described as follows, to-wit: one brick house, one story high with basement thereunder, dimension size about thirty-two feet long by fifteen wide, flat roof with gravel combination and interior consisting of three rooms. Also, a one-story frame building of three rooms, under one of which is an excavation or pit in the ground, walled with brick and mortar, floored, cased and seated properly and is being used for a water-closet or privy. Also, a hydrant and all pipe and material thereto belonging, situated on the following described premises, to-wit: Lot fourteen of block one of McDermotts' Willmington place addition and in block twenty-nine hundred and eleven of the city of St. Louis, and State of Missouri, said lot having a frontage of thirty feet on the north line of Filmore street, by a depth northwardly between parallel lines of one hundred and thirteen feet and five and one-eighth inches to an alley; said lot is bounded on the west by an alley, on the north by an alley, on the east by lot fifteen and on the south by Filmore street. Said premises, buildings and improvements belonging to and being owned by George D. Hopkins, which said account, the same being hereby filed in order that it may constitute a lien upon the buildings, improvements and premises above described, is as follows: One brick house as aforesaid, constructed, built and completed in toto on the twenty-first day of December, 1903; the contract price therefor being in a lump, eight hundred dollars, having received two hundred and fifty dollars from said owner as part payment therefor, there is now due and unpaid the balance of five hundred and fifty dollars.

"Furthermore, there was extra work done in the interior of said brick house as follows: one day by carpenter $ 4; one day by two plasterers $ 8; two days one man repairing the plastering $ 8; total extra work $ 20; also labor and material furnished in constructing, building and completing in toto the said one-story frame building and closet as follows: August twenty-fourth, one day procuring the building permit and cost thereof $ 7; August twenty-ninth, surveying lot by surveyor, lump price $ 12; one day assisting the surveyor $ 4; August thirty-first, 1,000 feet lumber $ 20; September third, second and fourth, three carpenters $ 36; same days one man digging pit for closet and walling with brick $ 12; 500 brick for walling the closet $ 4; three pair hinges and three hasps and staples 75 cents; nails $ 2; tar for roof $ 1; two rolls tar paper $ 2.70; tins and tacks for putting on the tar paper 25 cents; September fifth, one man putting on tar roof $ 4; September eleventh, one man casing and seating the closet $ 4; aggregating for the said frame building and closet a total of one hundred and nine dollars and seventy cents; September eleventh, city water main tapped and water conveyed by lead pipe onto the lot by hydrant, the labor and material furnished by the plumber in toto was twenty-five dollars; the entire above accounts in the aggregate are seven hundred and four dollars and seventy cents. The entire work done and material furnished as set out herein, was between the twenty-fourth day of August and the twenty-first day of December, 1903. This lien paper is in lieu and takes the place of a former one between the same parties recorded in the office of the circuit clerk on the eleventh day of January, 1904."

The suit is to enforce the lien.

The evidence shows that the brick house mentioned in the lien paper was built under a written contract for a gross sum, and that the other improvements mentioned in the lien account were constructed under a verbal contract to pay what they were reasonably worth. When plaintiff offered to read the declaration or lien paper in evidence the following occurred:

"Mr Rogers: I object to the introduction of the second one for the reason that under the lien law of Missouri, where the lien shows that there are two buildings built on the same or contiguous lots, there must be two accounts filed to maintain lien. Furthermore, that the lien account shows that there is a blending of lienable and non-lienable items, and that the materials furnished for the building in the lien shows that they are under distinct contracts, and they cannot be mingled in one account and the lien taken as a whole.

"The Court: That goes to the very question that you have got two contracts for building two separate buildings upon the same lot, and they are merged in the same account, as counsel says, and that cannot be done. You have got to file a separate and distinct lien under each one of your contracts. The objection...