Knapp Brothers Manufacturing Co. v. Kansas City Stock Yards Co., of Missouri

• Decision Date: 25 November 1912
• Citation: 152 S.W. 119,168 Mo.App. 146
• Parties: KNAPP BROTHERS MANUFACTURING COMPANY, Appellant, v. KANSAS CITY STOCK YARDS COMPANY OF MISSOURI et al., Respondents
• Court: Kansas Court of Appeals

152 S.W. 119

168 Mo.App. 146

KNAPP BROTHERS MANUFACTURING COMPANY, Appellant, v. KANSAS CITY STOCK YARDS COMPANY OF MISSOURI et al., Respondents

Court of Appeals of Missouri, Kansas City

November 25, 1912

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Ellis Cook & Barnett and Burnham, Ellis & Yale for appellant.

Lathrop Morrow, Fox & Moore for respondents.

OPINION

BROADDUS, P. J.

--This is a suit to enforce a materialman's lien against the Stock Yards Building in Kansas City, Missouri. 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, Missouri. 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 of 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, 580 1/2 of which was made up of short lengths, the price of which was twenty-five dollars per thousand; the price of the balance was twenty-nine dollars per thousand. It was shown that 2626 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 Stock Yards 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 Stock Yards 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 twenty-nine dollars 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 Stock Yards Company, which appears to be one corporation, and the suit is filed against the Kansas City Stock Yards Company of Missouri, and it appears that the latter company is the owner of the property against which the lien is sought to be obtained or secured, and that, therefore, there is a variance between the lien and the parties to the suit.

"Second, that the account sued on is for a certain number of lineal feet of this beading. A portion of this beading is charged at the rate of twenty-five dollars per thousand, namely, 580 1/2 feet, and the remainder at twenty-nine dollars per thousand. The evidence shows that some 24,592 feet was used in the building, but there is no evidence as to whether the amount that was used was to be paid for at the rate of twenty-nine dollars per thousand for the whole of it, or a portion of it at the rate of twenty-five dollars per thousand, and, therefore, by reason of the uncertainty or failure of proof, the demurrer to the lien should be sustained."

The first question is as to the variance between the names of the Kansas City Stock Yards Company and the same name with the words added, "of Missouri." As it appeared that there was only one Stock Yards Company doing business in the city, and that the notice of the lien and of the suit was served upon such latter corporation it will be assumed that no one was misled by the mistake. It is held that the Mechanics' Lien Law should receive a liberal construction and that "an honest mistake in the name of the owner of the building will not defeat the lien...