Kling v. Ry. Constr. Co. of Carondelet

• Decision Date: 17 June 1879
• Citation: 7 Mo.App. 410
• Parties: FREDERICK KLING ET AL., Appellants, v. RAILWAY CONSTRUCTION COMPANY OF CARONDELET ET AL., Respondents.
• Court: Missouri Court of Appeals

7 Mo.App. 410

FREDERICK KLING ET AL., Appellants,

v.RAILWAY CONSTRUCTION COMPANY OF CARONDELET ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1879.

1. Where the workman's contract is not with the owner, but with a subcontractor, the building cannot be bound by this contract for more than the reasonable value of the work done and materials furnished; and the lienclaim filed must set out the items, though the contract is for a gross sum.

2. A lien claim must be substantially correct and sufficiently definite; a claim filed for an amount greatly in excess of the amount due is not a compliance with the statute.

APPEAL from St. Louis Circuit Court.

Affirmed.

GOTTSCHALK, for appellants.

TERRY & WIETING, for respondents.

BAKEWELL, J., delivered the opinion of the court.

This is an action by plaintiffs, as subcontractors, against the Railway Construction Company as contractors, and the Carondelet Railway Company as owners of a leasehold interest of ten years, and against Mentrup as owner of the fee. Terry, another defendant, claims an interest in the fee, and was made a co-defendant on his own motion.

The Railway Construction Company, in its answer, admits the contract, but denies the correctness of the account, and sets up violations of the contraet, and delay in completing the work. The railway company files a general denial. Mentrup, the owner of the fee, makes default.

The cause was tried without a jury. The court found for appellants against the original contractor in the sum of $3,324.36. The finding was against plaintiffs as to the claim for a lien. Judgment was entered accordingly.

Only two questions are submitted for our consideration by counsel for appellants:--

1. Was the first item in the account so stated as to warrant the giving of a lien for it.

2. Admitting that the first item was properly excluded as not sufficiently specific to warrant a lien, should not the court have granted a lien for the remaining items of the account?

1. The account is for $6,790.75. It purports to be a claim of F. Kling & Brother against the Railway Construction Company of Carondelet for work, labor, and materials done and furnished by F. Kling & Brother, under contract with the Railway Construction Company, upon the buildings described.

The first item is: “To contract price, $4,996.” The remaining items are for various extras. The law requires “a just and true account of the demand.” Wag. Stats. 909, sect. 5. It is held, generally, that where the contract for construction of the building is for a sum in gross, the items of work and materials need not be filed; but these rulings do not apply where work has been done at the instance of a contractor. Ph. on Mech. Liens, sect. 352. The reason is, that where the contract is with the owner for a round sum of money, he can need no itemized account; but where the contract of the workman, though for a round sum, is not with the owner, but with a subcontractor, the contractor cannot bind the building for more than the materials furnished on the credit of the building are fairly worth, and it is therefore important that the owner should be informed as to the particulars of the demand, that he may inquire as to the justice of the...