Leach v. Bopp

• Decision Date: 09 January 1929
• Citation: 12 S.W.2d 512,223 Mo.App. 254
• Parties: EVELYN E. LEACH AND BERNARD LEACH, RESPONDENTS, v. EMIL BOPP, WALTER T. BOPP AND FRED RETHMEIER, APPELLANTS. [*]
• Court: Missouri Court of Appeals

12 S.W.2d 512

223 Mo.App. 254

EVELYN E. LEACH AND BERNARD LEACH, RESPONDENTS, v. EMIL BOPP, WALTER T. BOPP AND FRED RETHMEIER, APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

January 9, 1929

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

Judgment reversed and remanded.

George F. Heege for appellants.

(1) The ledger book of the defendant was not secondary evidence because the entries in the books were taken from slips and memorandums handed the bookkeeper by men who made them up, of time and labor, as the work, progressed. 17 Cyc., p. 377; Stetina v. Bergstein, 231 S.W. 1060; Robinson v Smith, 111 Mo. 207; Mo. Elec. Light & Power Co. v Connody, 72 Mo. App., 539; Wright v. Railroad, 117 Mo.App. 396-397; Affick v. Stuber, 136 Mo.App. 718. (2) Unless the commingling of the items was one between lienable and non-lienable items and unless it was intentional and done for fraudulent purposes, the lien account is good. This even though credits were unintentionally withheld. Cement Co. v. Polar Wave Ice & Fuel Co., 184 S.W. 954; Sec. 7227, R. S. 1919. (3) The liens were not invalid because the labor items were not separated as in most of the liens the items were more definite than the contract and because the liens as a whole showed that they could refer only to the various characters of work charged. McMillan v. The Ball & Gunning Milling Co., 190 Mo.App. 340; McCray Lumber Co. v. Standard Construction Co., 285 S.W. 106; St. Louis Fire Door, etc., v. Viviano, 185 S.W. 218; Architectural Iron & Foundry Co. v. Construction Co., 200 Mo.App. 46, 47. (4) All of the defendants were entitled to a mechanic's lien as their cases were properly proven. See authorities under points 1, 2 and 3.

S. C. Taylor for respondents.

(1) The account book which the witness Bopp was attempting to use for the purpose of "refreshing his memory" was inadmissible from any standpoint, and its use was very properly denied by the referee. 3 Jones, Commentaries on Evidence, page 2119, secs. 1155 and 1162; 22 Corpus Juris, sec. 1080, page 888; Mann v. Stewart Sand Co., 211 Mo.App. 256; Ridenour v. Mines Co., 164 Mo.App. 576; Hill v. Johnson, 38 Mo.App. 383. (2) Even disregarding the fact that the account book was not admissible in evidence, it was the duty of the lien claimant to produce, in the first instance, the best evidence possible to prove that his stuff entered into the construction of the building sought to be liened. Where, therefore, it is sought to charge a building with the cost of the labor of mechanics, the men who did the work should themselves be produced in court as witnesses to testify as to the character of the work, the amount thereof and so on, so that the defending owner be accorded the right of cross-examination. For exactly the same reasons living witnesses should be produced in court to testify as to what material, the amount thereof, etc., went into the structure. The "best evidence" rule applies with peculiar force in mechanic's lien cases. (3) It is incumbent on the lienor to file a "just and true" account within the meaning of the statute (sec. 7221, R. S. 1919), and the record in this case is replete with evidence that this was not done by any one of the three claimants herein. On this ground alone their liens should be denied. Edgar v. Salisbury, 17 Mo. Sup. 271; Hoffman v. Walton, 36 Mo. Sup. 613; Utloff v. Garland, 42 Mo.App. 256; Reitz v. Ghio, 47 Mo.App. 287; Feeney v. Rothbaum, 155 Mo.App. 333. (4) Where the account is hopelessly commingled (intermingled the books call it at times) with items not properly chargeable against the property in question so that the claims for which the lien is sought cannot be distinguished from other items of account which are due the artisan, but not due from the job sought to be liened, the mechanic's lien will be denied because of such commingling. Kirtley v. Morris, 43 Mo.App. 144; Reitz v. Ghio, 47 Mo.App. 287; Bambrick v. Webster Gros. Presby. Church, 53 Mo.App. 225. And the intermingling of lienable and nonlienable items in an account is fatal to the validity of the lien, if the items which are lienable cannot be separated from the remainder on an inspection of the account. John O'Brien Boiler Wks. v. Haydock, 59 Mo.App. 653.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is a suit in equity, authorized by statute, in which plaintiffs, as the owners of certain real estate, brought in mechanics' lien claims against such real estate to determine their respective rights. The court on its own motion appointed a referee to try the issues of law and the facts. It seems, however, that section 7245, Revised Statutes Missouri 1919, forbids that a referee be appointed on the court's own motion when the case is brought under the equity statute. [See Johnston v. Pump Co., 274 Mo. 414, 202 S.W. 1143.] The referee passed on the objections to the introduction and exclusion of evidence. Some of the claims were adjusted by compromise, leaving for ultimate determination the lien claims of certain subcontractors, who are appellants here, and the rights of plaintiffs and defendants regarding the form of the judgment. Appellants' separate appeals were consolidated.

Plaintiffs owned a residence in St. Louis county. Stix, Baer & Fuller Dry Goods Company, a corporation, had a contract with the owners for the remodeling and redecorating of the buildings. Plans and specifications were drawn and the cost of the whole undertaking was contracted for at $ 7400. After the Stix company entered into the contract, it sublet some of the work to Theodore Bopp, Sr., who, in turn, secured subcontractors for the different work, among them being appellants. When the work was completed by Bopp and his subcontractors, the owners refused to pay on the ground, among other, that the work was defective. Then the Stix company, the general contractor, filed its mechanic's lien for approximately $ 6000, the balance claimed as due from the owners. Plaintiffs then brought this equity suit to bring the various mechanic's lien claimants into court in order to have all the liens adjudicated in one suit. When these claims were asserted, plaintiffs denied defendants' right to a lien. It appears that the Stix company compromised its claim, and we therefore address ourselves to the result reached as to the appellants here.

The referee found, and the court approved, first, that defendant Rothmeier receive a judgment against the defendant Theodore Bopp, Sr., in the sum of $ 337.70 with interest, but that the lien be denied, and found against plaintiffs on their counterclaim.

The claim of defendant Emil Bopp is for painting work and materials furnished under contract with the general contractor, Theodore Bopp, Sr., in one count; another count is for work and labor under an agreement direct with the owners. The referee found under the first count that the lien account was not properly separated and stated and therefore was not lienable; that the evidence showed that same was not a just and true account between the parties. The referee recommended a judgment in favor of Emil Bopp as against defendant Theodore Bopp, Sr., on this count for the sum of $ 1264.49 with interest. On the second count, being for $ 201.15, the referee found that the items were fatally intermingled, and, further, that the account was not true and correct, and found in favor of plaintiffs, the owners, on this count.

As to Walter T. Bopp, there were three liens filed. The first was for labor and material furnished under his contract with Theodore Bopp, Sr.; the second was a lien claim for work and labor under an agreement direct with the plaintiffs, and the third was for labor and materials furnished under a contract with Theodore Bopp, Sr. The liens were denied, however the referee recommended a judgment in favor of this defendant against the contractor, Theodore Bopp, Sr., for the work done under contract with said Theodore Bopp, Sr.

This, briefly, recites the finding of the referee in so far as the issues here are concerned and which the court approved and vitalized in the judgment. The record is extremely lengthy and involved. We will discuss the pertinent portions thereof in the course of the opinion.

The record disclosed that the case was tried below by the referee in seeming apprehension that a trial for the establishment of a mechanic's lien presents unusual technicalities and niceties.

As we read the statutes and decisions on mechanic's liens, we see no fearsome involvement, and certainly the trial procedure is no more intricate than in an ordinary case. Section 7227, Revised Statutes Missouri 1919, provides that "the court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted."

It was the early view (see Edgar v Salisbury, et al., 17 Mo. 271, and Blakey v. Blakey, 27 Mo. 39), that we should construe the mechanic's lien law strictly, since the statute was in derrogation of the common law. However, now the directly opposite view is taken by subsequent decisions of our Supreme Court and the Court of Appeal. It is now firmly settled that these statutes should be liberally construed. A full review of the cases showing this change is set forth in Carroll Contracting Co. v. Newsome, 201 Mo.App. 117, 210 S.W. 114. That case further attempted to clarify by unequivocably establishing, what we think to be the correct rule, that a subcontractor may make lienable charges for superintendence charges, and while in that case the charges were for superintendence of a subcontractor which was a corporation, we entertain no doubt that where such contractor is not a corporation, charges for superintendence are lienable items. We have recently...