Mahan v. Brinnell

• Decision Date: 15 April 1902
• Citation: 67 S.W. 930,94 Mo. App. 165
• Parties: MAHAN v. BRINNELL et al.
• Court: Missouri Court of Appeals

67 S.W. 930

94 Mo. A. 165

MAHAN v. BRINNELL et al.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

MECHANICS' LIENS — ACCOUNT — WITHDRAWING PLEADINGS.

1. Itemized account need not be filed with the justice of the peace, in action to enforce a lien, where the statement before him contains the items as particularly specified as they are in the lien statement.

2. A subcontractor who does work, under contract with the original contractor, for a round sum, need give in his lien account only a general statement of items.

3. An answer filed for a bank by its attorneys on information given by its cashier, though afterwards withdrawn, is competentent evidence against it as an admission against interest.

Appeal from circuit court, Barry county; Henry C. Pepper, Judge.

Action by M. F. Mahan against C. J. Brinnell and another. Judgment for plaintiff. Defendant Brinnell appeals. Affirmed.

This action originated before a justice of the peace, and was brought to enforce a lien for labor and material against a house and lot in the town of Monett, owned by the Commercial Bank. Brinnell was the original contractor, and he let the contract for the plumbing and heating apparatus to Mahan. The statement filed in the magistrate's court contained two counts, — one for the plumbing, and the other for the heating material and work. The first count, which related to the plumbing, was as follows: "Plaintiff, for cause of action, states that on the day of August, 1899, he entered into a contract with defendant C. J. Brinnell to furnish all material for and do all the plumbing work in the building hereinafter described, according to plans and specifications, for the price and sum of two hundred and eighty-five dollars ($285); that plaintiff performed said contract on his part, and furnished material consisting of 3 water-closet outfits, 3 marble slab wash basins, 1 white enameled sink, and also all faucets, drain pipes, and all other necessary pipes and fixtures necessary to complete said contract, to the amount of $215.68 worth, and performed work and labor on said contract to the amount of $69.52; that defendant C. J. Brinnell had paid on said contract the sum of $129.44 cash, and by note in Commercial Bank $86.24, leaving a balance due plaintiff on said contract of $69.32; that said materials were furnished for and used in, and said work and labor was furnished for and done on and used in, the construction of a certain three-story stone and brick building, situated on the following described lot of ground, to wit, lot No. 1 in block No. 10 in the Monett Town Company's town site of Monett, Mo., now city of Monett, in Barry county, Mo.; that said property was at the dates of furnishing of said materials and doing of said work, and now is, the property of the defendant the Commercial Bank of Monett, a corporation, and that said C. J. Brinnell was the original contractor with the said Commercial Bank of Monett for the erection of said building; that said demand became due on the 15th day of January, 1900, and within four months thereafter, to wit, on the 10th day of April, 1900, plaintiff filed said account in the office of the clerk of the circuit court within and for the county of Barry, duly verified by affidavit, giving a description of the property to be charged with the lien, stating the amount due after all just credits had been given, and describing the said Commercial Bank and C. J. Brinnell as owner and contractor, respectively; that more than ten days prior to the filing of said account, to wit, on the 20th day of March, 1900, plaintiff gave the said Commercial Bank notice in writing that he held a claim against said building, stating therein the amount claimed, and that the same was due from said C. J. Brinnell; that on the 11th day of April, 1900, plaintiff filed a notice with the clerk of the circuit court of said county, stating that on the 12th day of April, 1900, this action would be instituted before Walt Williams, a justice of the peace of Monett township, Barry county, for the recovery of the above indebtedness and the enforcement of the same as a lien against the property hereinbefore described. Wherefore plaintiff demands judgment for the sum of ($69.32) sixty-nine and thirty-two...