McCarthy Lumber & Construction Company v. Kinder

• Decision Date: 03 November 1920
• Citation: 225 S.W. 1024,206 Mo.App. 287
• Parties: McCARTHY LUMBER & CONSTRUCTION COMPANY, a Corporation, Respondent, v. LEE F. KINDER and EVA KINDER, his wife, ST. FRANCOIS COUNTY BUILDING & LOAN ASSOCIATION, a Corporation, and OSCAR L. HAILE, Appellants
• Court: Missouri Court of Appeals

225 S.W. 1024

206 Mo.App. 287

McCARTHY LUMBER & CONSTRUCTION COMPANY, a Corporation, Respondent, v. LEE F. KINDER and EVA KINDER, his wife, ST. FRANCOIS COUNTY BUILDING & LOAN ASSOCIATION, a Corporation, and OSCAR L. HAILE, Appellants

Court of Appeals of Missouri, St. Louis

November 3, 1920

Appeal from the Circuit Court of St. Francois County.--Hon. Peter H Huck, Judge.

AFFIRMED.

Judgment affirmed.

Jerry B. Burks for appellants.

(1) (a) The first two items of the lien account were insufficient as the basis for a lien, and the court therefore erred in refusing defendants' Instructions 1 and 2. Even in cases of lump contracts the items must in some manner specify or identify the material and labor used, then to this may be added the contract price. So held in the following cases Rude v. Mitchell, 97 Mo. 365 at 372-4; Bruns v Capstick, 46 Mo.App. 397, 401-2; Baker v. Smallwood, 161 Mo.App. 257, 259; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 58; Smith v. Haley, 41 Mo.App. 611, 620; McMillan & Parker v. Ball & Gunning Mill Co. 190 Mo.App. 340, 350; Martin-Welch Hardware Co. v. Spencer, 214 S.W. 417; Grace v. Nesbitt, 109 Mo. 16-19. (b) Even the case of Hilliker v. Francisco et al., 65 Mo. 598, the reasoning of which is somewhat impaired under later decisions, is not sufficient to save these two above mentioned items of the lien account from the rule that the items must designate the kind of material used. In that case the contract designates the material as stone. In the case at bar, no material is designated. (2) The rule requiring the items of the lien account to be set forth so as to show them lienable, with equal force to original contractors. Rude v. Mitchell, 97 Mo. 374; Mitchell, Planing Mill Co. v. Allison, 138 Mo. 54, 55. (3) The items of the lien account for table, skirt box, bookcases, water front for stove and express charges were not lienable, and so known to plaintiff at the time it filed the lien account. The evasive answers and artful dodging of witness McCarthy, for plaintiff, demonstrates this fact. This vitiates the entire lien account. Carthage Sup. Lime-stone Co. v. Central Meth. Church, 156 Mo.App. 672; Dougherty & Moss L. Co. v. Rothbaum, 156 Mo.App. 251; Kittrick v. Hopkins, 114 Mo.App. 436. The items aforesaid not being lienable, the court erred in refusing to give defndants' Instructious 3 and 4. (4) The lien account was not filed within six months after the accrual of same. The last item of the account was for extras and was an independent contract, and will not toll the statute, and the court erred in refusing Instruction 5, requested by defendants. Kern v. Paff, 44 Mo.App. 35; Grace v. Nesbit, 109 Mo. 16. (5) (a) The court erred in admitting in evidence the first two items of the lien account, over the objections and exceptions of defendants. See cases under points 1 and 2. (b) And the court erred in permitting plaintiff to introduce evidence touching the solvency of the bond entered into between defendants, Kinder, and building and loan association, for the reason these matters were wholly irrelevant to the matters at issue. (6) The court erred in refusing to give Instruction 6, requested by defendants. The evidence on the part of defendants shows that plaintiff was to take a second deed of trust for the deferred payments. This was a waiver of the lien, and it was error for the court to disregard this theory of the case. Baumhoff v. St. L. & K. T. Ry. Co., 171 Mo. 129. (7) The court erred in refusing to give Instruction 7, requested by defendants. Schulenberg v. Hayden, 146 Mo. 594. (8) The petition in this case seeks to recover on express contract and also on quantum meruit for extras, in one and the same count. This was wrong and the court erred in overruling defendants' objections to the introduction of evidence under said petition. Grace v. Nesbit, 109 Mo. 15; Bruns v. Capstick, 46 Mo.App. 398; Hoagland v. Railway, 39 Mo. 458.

J. P. Cayce for respondent.

(1) Where the work was done or the materials furnished under an entire contract to do or furnish the same for a gross sum, it is not necessary that the claimant in his lien statement itemized his account. Mechanics' Liens, 27 Cyc, 188; National Press Brick Co. v. Lester Construction Co., 177 Mo.App. 573; Busso v. Fette, 55 Mo.App. 453; Hilliker v. Francisco, 65 Mo. 598; Holland v. Cundiff, 96 Mo.App. l. c. 80; Mitchell Plaining Mill Co. v. Allison, 138 Mo. 50; Marshall v. Hall, 200 S.W. 774. (2) Where the design of a house calls for a combination of articles with the realty in a harmonious scheme, the articles will be deemed part of the realty although not actually annexed. Fixtures--19 Cyc, 1037 and 1048; Mechanics' Liens, 27 Cyc, 37 and 38; Reilly v. Hudson, 62 Mo. 383 (this was a mechanic's lien for "an ordinary cooking range"). (3) A mechanic does not waive his statutory lien by an agreement to accept other things than money in payment for the work done or materials furnished, unless that agreement is performed by making payment under the terms of the contract. Baumhoff v. Railroad Co., 171 Mo. 120; Globe Light & Heat Co. v. Doud, 47 Mo.App. 439. (4) The mechanic's lien is entitled to priorty over the deed of trust, as to all of the items in the lien account. Sec. 8219, R. S. 1909; Fire Extinguisher Co. v. Elevator Co., 165 Mo. 171; Dubois' Admr. v. Wilson's Trustee, 21 Mo. 213; Hydraulic Press Brick Co. v. Bormans, 19 Mo.App. 664; Great Western Planing Mill v. Bormans, 19 Mo.App. 671. When work or material is done or furnished, all going to the same general purpose, or as parts of a general improvement of the property, though such work be done or ordered at different times, yet as the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one and not distinct matters of settlement, the whole account must be considered as a unit, or as being a single contract, and may be included in one lien account. Bruns v. Braun, 35 Mo.App. 344; Flanagan Bros. v. O'Connell, 88 Mo.App. 8; Kearney v. Wurdeman, 33 Mo.App. 447; Pulliss v. Hoffmann, 28 Mo.App. 671. "It is permissible to embrace in an account filed as a lien items for work on the same building under different contracts with the owner." Kern v. Praff, 44 Mo.App. 29, 35; Page v. Bettes, 17 Mo.App. 375.

NIPPER, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

NIPPER, C.

This is an action brought by an original contractor to recover the sum of $ 960.19, as a balance due and alleged to be owing by defendants Lee F. Kinder and Eva Kinder to plaintiff for material and labor furnished in the erection of a dwelling and improvements made in connection therewith, and to establish a lien on the building and lot on which it was located. After trial by the court without the aid of a jury, plaintiff recovered in the court below and defendants prosecute their appeal.

Defendants objected to the introduction of any testimony in the court below, for the reason that the petition failed to state any cause of action, and that it had embraced in one and the same count matters of express contract and quantum meruit. The court overruled this objection.

It was then admitted that defendants owned the property; that they acquired title on November 14, 1915; that on the 24th of January, 1916, they executed to the defendant building and loan association, a deed of trust in the sum of $ 2,600, which was recorded on the 5th of February following.

Defendants then objected to the introduction of the lien account, for the reason that it was not a true account within the meaning of the mechanics' lien statute, because the first two items set out in the account do not state the nature of the work done, or material furnished, or items thereof. This objection the court overruled.

It was then admitted that the said lien account, duly verified, was filed in the office of the clerk of the circuit court, October 16, 1916, and that the items are set out and stated in the same form as set forth in the petition.

John W. McCarthy, who it seems was connected with plaintiff in some official capacity (although the evidence does not disclose in what way), testified that he entered into a contract with defendant Lee F. Kinder during the latter part of October or the first of November 1915, to erect a building on the lot of ground as set out in the petition, located in the City of Farmington, for the sum of $ 2,376; that he submitted several plans and specifications to defendant before he accepted any particular plan. He states that after defendant had made his selection and had approved the plan submitted, he submitted to defendant the following proposition in writing, which was offered in evidence:

"Oct. 15, 1915.

"Prof. L. F. Kinder,

Farmington, Mo.

"Dear Sir:

"We propose to furnish all labor and all the material required for the erection & completion of your 1 story bungalow dwelling in accordance with the plans and specifications that we have prepared for the same, for the sum of $ 2,480.

"It is understood that you wish to omit the brick fire place from this building, consequently we will deduct the sum of $ 104 for this omission, making our net contract $ 2,376.

"It is understood and agreed between us that during the construction of this building we are to receive as first payment on the work a building and loan certificate amounting to $ 2,400, and that we are to place this certificate with the Bank making us the best proposition on discounting the same for cash and the amount of this discount together with the amount of some additional work that you wish done in and on your residence, which is not provided for in our agreement, is to be carried by us, you giving as security for the same a...