McDermott v. Claas
| Decision Date | 31 March 1891 |
| Parties | McDermott v. Claas, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
W. F Smith and D. D. Fassett for appellant.
(1) The claim of appellant that the petition was bad as not stating facts sufficient to constitute a cause of action has been made with sufficient definiteness in the motions for a new trial and in arrest. But even if such claim had been lacking in definiteness as in said motions filed, or not made at all in the case, it would not be lost, but could be made in this court for the first time. Bateson v. Clark, 37 Mo 31 (construing R. S., sec. 2302; Tapley v. Watson, 38 Mo. 489; I ba v. Railroad, 45 Mo. 475; McGrady v. Harris, 54 Mo. 147; Peltz v. Eberle, 62 Mo. 177; Sweet v. Maupin, 65 Mo. 72, holding among other things that section 2302, Revised Statutes, 1889, cited in part 1 of respondent's brief, has no application to cases where petition does not state a cause of action. Barrett v. Railroad, 68 Mo. 65; Weil v. Greene Co., 69 Mo. 286; Hart v. Wire Co., 91 Mo. 415, holding that the statutes of jeofails, etc., do not apply to case where the petition does not state facts sufficient to constitute a cause of action. McIntire v. McIntire, 80 Mo. 473. (2) The objection that the petition does not state facts sufficient to constitute a cause of action in a case of this kind is not available in the supreme court. Hart v. Wire Co., 91 Mo. 415; Sweet v. Maupin, 65 Mo. 72; Weil v. Greene Co., 69 Mo. 281. Neither the lien record, nor the pleadings in a lien case, are amendable in material averments, even in the trial courts, after the lapse of the statutory period for filing the lien or bringing the action. Fury v. Borckler, 6 Mo.App. 24; O'Neil v. Hirst, 11 Phil. Rep. 171; Mfg. Co. v. Jefferson, 12 Phil. Rep. 483; Russell v. Ball, 44 Pa. St. 54; Dearie v. Martin, 78 Pa. St. 55; Crowe v. Nagle, 76 Ill. 437; Knox v. Hilty, 11 A. 792. (3) In special statutory proceedings plaintiff's right to recover must appear from the facts stated in plaintiff's petition, or statement of his cause of action, and every fact must be stated. Barrett v. Railroad, 68 Mo.App. 65; Phillips on Mech. Liens, sec. 21; Railroad v. Mahoney, 42 Mo. 467; Green and Meyer's Prac., secs. 447-8, p. 175; Overton on Liens, sec. 571, p. 594; Foster v. Poillon, 5 E. D. Smith, 556; Cook v. Vreeland, 21 Ill. 431; Mayson v. Hayward, 5 Minn. 75; Bayard v. Malcomb, 1 Johnson's R. 470; Bartlett v. Crozier, 17 Johns., star p. 456; Jones on Liens, sec. 1587; Black on Tax Titles, sec. 262; Gault v. Soldani, 34 Mo. 150. (4) An objection to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action, is proper practice and recognized as saving the objection at all stages. Grove v. Kansas City, 75 Mo. 675; Garner v. McCullough, 48 Mo. 315; Andrews v. Lynch, 27 Mo. 169. (5) The averment which is lacking is a material one. Whitwell v. Thomas, 9 Cal. 499. (6) Where the pleadings disclose no cause of action, it is not enough that one was proved. "The effect and meaning of a record depend on the pleadings rather than the proof." "The evidence forms no part of a record -- the pleadings the most essential part." Park v. Keeber, 37 Pa. St. 351; Bellanger v. Hersey, 90 Ill. 70. (7) The court found as a matter of fact that the sidewalk as laid in front of the building was a public sidewalk, thoroughfare or highway, and such finding of fact is final, and the supreme court will not entertain the claim of respondent to the effect that the sidewalk was not a public side walk in a public street. Handlan v. McManus, 100 Mo. 124 (8) It devolves on the plaintiff and not on the defendant in a case where lienable and non-lienable matter is mingled under one charge or contract to separate and distinguish the two, if plaintiff seeks to save himself from the effects of such mingling. Stephens v. Lincoln, 114 Mass. 476; McGinnis v. Boyle, 123 Mass. 570.
Stark & McEntire for respondent.
(1) The petition stated a cause of action, and was amply sufficient to sustain the finding and judgment of the court charging a lien upon the property of the appellant. First. The question raised by the appellant, as to whether the petition in the proper way alleged that the lien as filed named both the owner and contractor, not having been specifically presented to the trial court, will not now be heard. R. S. 1889, sec. 2302; Sweet v. Maupin, 65 Mo. 65; Railroad v. Petty, 30 Ind. 261. Second. If there is any doubt as to the sufficiency of the petition on the point named, the respondent now asks leave to amend it so as to insert the words necessary to supply the formal defect, and to make it conform to the uncontroverted evidence. R. S. 1889, sec. 2114; R. S. 1879, sec. 3583; Daily v. Houston, 58 Mo. 361; Cruchon v. Brown, 57 Mo. 38; Mueller v. Kaessman, 84 Mo. 318. (2) The account as filed is "a just and true account of the demand" as required by the statute. Hayden v. Wulfing, 19 Mo.App. 353; Johnson v. Building Co., 23 Mo.App. 546; Hilliker v. Francisco, 65 Mo. 598. It itemizes the kinds of brick and the number of each kind, as laid in the wall. In other words, it charges according to wall measurement. Doyle v. Wurdeman, 35 Mo.App. 330; Kurney v. Wurdeman, 33 Mo.App. 447; McLaughlin v. Schawacher, 31 Mo.App. 365; R. S. 1889, sec. 8863; Laws, 1885, p. 198. (3) The evidence does not show that any charge was made for the bricks laid in the sidewalk. First. But such charge would be lienable, inasmuch as the house being a store and dwelling-house, abutting on the street, could not be comfortably used and enjoyed without a front sidewalk, and was included in the plans and specifications submitted by the owner to the contractor and subcontractor to work by. Pullis v. Hoffman, 28 Mo.App. 666; Henry v. Plitt, 84 Mo. 237. Second. Furthermore, the amount of work done in the sidewalk was so insignificant in quantity and value as compared to the whole work, that it would not defeat the lien. Leisse v. Schwartz, 6 Mo.App. 413. (4) No error was committed in admitting in evidence the copy of the bid by the respondent, and Fritz's acceptance of it which constituted the contract under which the brickwork is done. Williams v. Porter, 51 Mo. 441; Hilliker v. Francisco, 65 Mo. 598; Kling v. Construction Co., 7 Mo.App. 410; Foster v. Wulfing, 20 Mo.App. 85; Holmes v. Braidwood, 82 Mo. 610. (5) The errors alleged by the appellant in his brief cannot be considered, because the motions for a new trial and in arrest of judgment did not specifically direct the attention of the trial court to them. R. S. 1889, sec. 2302; R. S. 1879, sec. 3774; Sweet v. Maupin, 65 Mo. 65; State ex rel. v. Rucker, 59 Mo. 17; Fickle v. Railroad, 54 Mo. 219. (6) The judgment being clearly for the right party, this court will not disturb it. R. S. 1889, sec. 2303; Hedecker v. Ganzhorn, 50 Mo. 154; Conley v. Doyle, 50 Mo. 234; Hoskinson v. Adkins, 77 Mo. 537; State ex rel. v. Edwards, 78 Mo. 473; Sweet v. Maupin, 65 Mo. 65.
Godfrey Fritz, in March, 1886, contracted with Charles Claas to erect a three-story, brick building on a lot belonging to the latter in the city of St. Louis, and plaintiff, as subcontractor under Fritz, agreed to do and did do the brick work, and this action was brought against Fritz to recover the value of the work, and against Claas to foreclose a mechanic's lien against the building and the lot on which it stood, the amount claimed being $ 2,514.
The case was tried by the court without a jury. Judgment went against Fritz personally for $ 2,758.70, that being the principal and interest of the demand, and against Claas, fixing a lien on his property and awarding a special fieri facias against it for the payment of that amount. Claas alone appeals.
I. The first error urged for a reversal of the judgment of the trial court is that the petition does not state facts sufficient to constitute a cause of action, and the appellant's objection to the introduction of any evidence under it ought to have been sustained. Section 3176, Revised Statutes, 1879, requires subcontractors to file with the clerk of the circuit court an account of the amount due him, "with the name of the owner or contractor or both if known to the person filing the lien."
It is insisted that the petition in this case fails to state that the account filed with the clerk gave the name of the contractor and for that reason failed to state a cause of action to foreclose a mechanic's lien in favor of a subcontractor. We do not think the assumption that the petition fails to make this statement is justified by the record. The petition describes the building to be erected and the property on which it was erected, alleges that the appellant owned the property; that Godfrey Fritz was the contractor with the appellant for the erection of the building; that plaintiff made a contract with said Fritz to "do the brick work and furnish the materials for" the building for $ 2,514, which work he did and for which said Fritz was still indebted to him, none of this sum having been paid. The petition then alleges that "within four months after the completion of the building, he gave notice to said defendant Claas that he claimed a mechanic's lien against the buildings and real estate aforesaid, for the sum aforesaid due, stating also from whom the same was due for the work and labor done and materials furnished by him as aforesaid, and that, unless the said amount was paid within ten days," the plaintiff would file a mechanic's lien on said buildings and real estate; that no part of said sum being paid within four months after said indebtedness accrued, to-wit, on the eighth day...
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