Knapp Bros. Mfg. Co. v. Kansas City Stockyards Co.

• Decision Date: 25 November 1912
• Citation: 168 Mo. App. 146,152 S.W. 119
• Parties: KNAPP BROS. MFG. CO. v. KANSAS CITY STOCKYARDS CO. OF MISSOURI et al.
• Court: Missouri Court of Appeals

152 S.W. 119

168 Mo. A. 146

KNAPP BROS. MFG. CO. v. KANSAS CITY STOCKYARDS CO. OF MISSOURI et al.

Kansas City Court of Appeals. Missouri.

November 25, 1912.

Rehearing Denied December 31, 1912.

1. MECHANICS' LIENS (§ 158) — PROCEEDINGS — VARIANCE IN NAME.

The fact that a materialman's lien was filed against the "Kansas City Stockyards Company," while the company's corporate name was "Kansas City Stockyards Company of Missouri," against whom service of notice of lien and process were had, was not a material

variance, so that plaintiff was properly allowed to amend by adding the words "of Missouri" to defendant's name.

2. MECHANICS' LIENS (§§ 5, 157) — CONSTRUCTION OF LIEN LAW.

The mechanics' lien law should be liberally construed; and an honest mistake in the owner's name will not defeat the lien if the rights of third parties have not intervened.

3. MECHANICS' LIENS (§ 157) — MATERIALMAN'S LIEN — VALIDITY.

A materialman's lien was not invalidated because a small part of the material, the price of which does not appear, did not go into the building.

4. MECHANICS' LIENS (§ 157) — MATERIALMAN'S LIENS — EXTINGUISHMENT OF LIEN.

The entire lien is lost where the material furnished is blended, so that which is lienable cannot be distinguished from that which is not.

5. MECHANICS' LIENS (§ 122) — NOTICE OF LIEN.

Mistakes in the notice of lien, given by subcontractors to owners, will not vitiate it, unless misleading such owners to their prejudice.

6. MECHANICS' LIENS (§ 106) — RIGHT TO LIEN — "SUBCONTRACTOR."

There can be such relation as a subcontractor to a subcontractor; and the fact that subcontractors were materialmen did not prevent them from being "subcontractors" with all of the lien rights as such.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by the Knapp Bros. Manufacturing Company against the Kansas City Stockyards Company of Missouri and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Burnham, Ellis & Yale and Ellis, Cook & Barnett, all of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondents.

BROADDUS, P. J.

This is a suit to enforce a materialman's lien against the Stockyards building in Kansas City, Mo. The defendant Swenson Construction Company had the contract for the erection of the building, and did the work. Among other material that went into its construction was what is known as corner bead. The specifications called for Hunt's metal corner bead, or its equivalent. The contractor finally decided to use the Knapp corner bead. Instead of obtaining it direct from the plaintiff, they bought it from defendants Richards & Conover, a corporation engaged in business in Kansas City, Mo. The latter bought the material from defendant Schuyler C. Hodge, who was doing business as the Building Specialty Company. The construction company paid Richards & Conover for the material, and that company paid Hodge for it. Hodge failing to pay the plaintiff, it filed a lien on the building, and in due time instituted this suit. The original contractor, the Swenson Construction Company, bought the material from Richards & Conover to be used in the building. The latter bought it from Hodge, also to be used in the building. And the latter bought it from plaintiff to be so used. Richards & Conover made a written order on Hodge, or the Building Specialty Company, for the material. There seemed to have been some delay in the delivery of the goods; whereupon Richards & Conover's agent telegraphed to plaintiff, and also wrote it, to hurry up the shipment, and when the material arrived at Kansas City he was on hand and opened the cars and helped check it out. This agent, at the time had Hodge's bill for the goods and made a notation on it for the Swenson Construction Company. The goods were taken from the cars and hauled in Richards & Conover's wagons and delivered at the building in the course of construction.

The plaintiff refused to sell the material to Hodge or the Building Specialty Company, but agreed if he would give the name of the building in which it was to go and the name of the party to whom he was selling that it would ship the material. Hodge wrote to plaintiff that the material was to go into the Live Stock Exchange Building in Kansas City, and that Richards & Conover were the purchasers of the goods.

The plaintiff's lien called for 25,000 feet of beading, 580½ of which was made up of short lengths, the price of which was $25 per thousand. The price for the balance was $29 per thousand. It was shown that 2,626 feet of the bead was left over that did not go into the building. There was nothing to show to which class this left-over material belonged, as to price.

The lien was filed in the name of the Kansas City Stockyards Company, and that company was made defendant in the suit. The evidence disclosed that that company was a Kansas corporation that had gone out of business, and was succeeded by a corporation known as the Kansas City Stockyards Company of Missouri, a Missouri corporation. However, notice of the lien and service of process were had against the latter. The plaintiff was allowed to amend its petition by inserting the words "of Missouri" after the word "Company."

The plaintiff offered to credit its lien on the overplus beading at the highest price of the classification, at the rate of $29 per thousand.

The court's instruction to the jury practically was to return a verdict in favor of plaintiff against Hodge and in favor of all the other defendants. From the judgment plaintiff appealed.

The judge announced the following reasons for denying appellant's lien, viz.: "First. That there is a complete variance between the lien and the parties that are defendants to this suit, in that the lien is filed against the Kansas City Stockyards Company, which appears to be one corporation, and the suit is...