Martin-Welch Hardware & Plumbing Co. v. Spencer

• Decision Date: 16 June 1919
• Docket Number: No. 13278.,13278.
• Court: Missouri Court of Appeals
• Parties: MARTIN-WELCH HARDWARE & PLUMING CO. v. SPENCER et al.

214 S.W. 417

MARTIN-WELCH HARDWARE & PLUMING CO. v. SPENCER et al.

No. 13278.

Kansas City Court of Appeals. Missouri.

June 16, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Suit by the Martin-Welch Hardware & Plumbing Company against E. J. Spencer and others. Personal judgment for plaintiff against the named defendant, which judgment was declared a lien upon the premises, and the defendants M. H. L. Watts, trustee in a deed of trust, and C. R. Home, cestui que trust, appeal. Reversed and remanded, with directions.

W. H. L. Watts and John P. Cell, both of Kansas City, for appellants.

C. C. Madison, of Kansas City, for respondent.

BLAND, J.

This is a suit to enforce a mechanic's lien amounting to $236.60, brought against the owner of the property, the holder of a deed of trust thereon and the trustee in said deed. The case was tried without the aid of a jury. Plaintiff recovered a personal judgment in the sum of $302.25, the amount of its demand, with interest, against the defendant E. J. Spencer. The judgment was declared a lien upon the premises, and defendants Watts and Home, being respectively the trustee and beneficiary in the deed of trust, have appealed.

The facts show that plaintiff was engaged in the hardware, tinning, and plumbing business at Independence, Mo. In the spring of 1913, defendant E. 3. Spencer, the owner of ground near said city upon which he had planned to construct a cottage of a type similar to others he had built, entered into an agreement with plaintiff for the furnishing of all the sheet metal, spouting, hardware, and material for the installation of a set of plumbing in the house. All of these things were covered by a single contract, the price being agreed upon with the understanding that delivery should be made at such times as the progress of the construction should require. The lien statement shows that all of the material except the plumbing was delivered between March 8, 1913, and May 27th of that year. All of this material, except the plumbing, is properly itemized. Then follows the last item covering the plumbing, to wit: "December 16" (1913) "plumbing complete $115.00."

At the trial the present defendants objected to the item "plumbing complete" as "lump charge" and as being too general and not sufficiently specific. The objection was overruled. Complaint is now made of the action of the court in so doing. We think that the objection should have been sustained. The mechanic's lien statute (section 8217, R. S. 1909) requires that the lien statement to be filed must contain "a just and true account of the demand due him or them after all just credits have been given." The general rule is that the account must be fairly itemized or the same will not be "a just and true account" as required by the statute. To what extent the account must be itemized depends upon circumstances. In general a "lumping" item of the whole contract price is no compliance with the law (Rude v. Mitchell, 97 Mo. 365, 11 S. W. 225), but as stated in Mahan v. Brinnell, 94 Mo. App. 165, loc. cit. 170, 171, 67 S. W. 930, 931:—

"When the lien is filed by the original contractor, who has specially agreed with the owner to do the job for a certain price, it seems a detailed statement of the items of material and labor that entered into the improvement is not required; presumably because the owner knew what he bargained for when he agreed on a price, and does not need to be apprised of the basis of the charge by an enumeration of items."

See, also, McMillan & Parker v. Ball & Gunning Milling Co., 190 Mo. App. 340, loc. cit. 350, 177 S. W. 315. In the cases cited, as well as in the case of Hilliker v. Francisco, 65 Mo. 598, it was sought to obtain a mechanic's lien against the owner, and not against the holder of a mortgage such as occurs in this case. That this latter circumstance has some bearing on the case will be hereafter noted.

As to the item under discussion the evidence shows that the owner had "a lump sum" agreement with plaintiff to pay it $115 for the plumbing material. A witness testified that the words "plumbing complete" are ordinarily understood by the trade to mean:

"A completed job, lavatory complete, toilet or stool, complete sink with its proper connections to the sewer, traps underneath those fixtures, proper ventilation to the soil, pipe connections and through the roof, finally winding up and it is commonly called a complete set of plumbing."

It is...