McGarry v. Averill

• Decision Date: 07 January 1893
• Citation: 50 Kan. 362,31 P. 1082
• Parties: H. MCGARRY v. C. W. AVERILL
• Court: Kansas Supreme Court

31 P. 1082

50 Kan. 362

H. MCGARRY v. C. W. AVERILL

Supreme Court of Kansas

January 7, 1893

Error from Ford District Court.

ACTION by Averill against McGarry to foreclose a mechanic's lien. Judgment for the plaintiff, sustaining the lien, at the September term, 1889. The defendant comes to this court. The opinion states the facts.

Judgment reversed and cause remanded.

H McGarry, plaintiff in error, for himself:

The court erred in permitting the plaintiff below to testify that the account which he had filed for a mechanic's lien was correct. The most liberal courts not only require that the books of original entry be produced to prove the account sued on, but that the party offering the books must show that other parties settling by the same have found them correct and also that the books are free from suspicious circumstances. See 2 Rice, Ev., pp. 823, 827; 1 Greenl. Ev § 117, et seq. See, also, Cresswell v. Slack, 68 Iowa 110; Caldwell v. McDermott, 17 Cal. 466.

The court below erred in not allowing the plaintiff in error to show, by competent testimony, that a large amount of material, for which suit is brought, was not used in the construction of the building for which it was furnished. See Rice v. Hodge, 26 Kan. 164; Hill v. Bowers, 45 id. 592; Sylvester v. Quartz Mine Co., 22 P. 217; Powder Works v. Gold Mines, 22 id. 391; Harmon v. S. F. & S. Rld. Co., 22 id. 407.

Ed. H. Madison, for defendant in error:

If plaintiff could prove without the account books that he actually sold and delivered the goods sued for, he was not compelled to produce the books. Wolf v. Batchelder, 56 Pa. 87. This case is not in point with Hill v. Bowers, 45 Kan. 592. In that case no part of the material was used. In this case the house was completed and $ 1,200 has been paid by the owner, and a small balance only remains due. See, also, Weaver v. Sells, 10 Kan. 619; Becker v. Pettigrew, 6 Ohio St. 247; Presbyterian Church v. Allison, 10 Pa. 413; Neilson v. Iowa Eastern Rld. Co., 51 Iowa 184; Wallace v. Mechoir, 2 Browne, 104; Greenway v. Turner, 4 Md. 295; Watts v. Whittington, 48 id. 353.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

C. W. Averill brought this action to recover a balance due for building material furnished to R. P. Adams for the construction of a building for H. McGarry, and also to foreclose a mechanic's lien which he had filed against the building. He obtained a judgment against Adams for $ 158.05, and a decree foreclosing the mechanic's lien. McGarry contended that there was not as much due as was claimed by Averill, and, further, that the material claimed to have been furnished was not actually used in the construction of the building.

Only two errors are assigned. McGarry complains that the court permitted Averill to testify that the account which he had filed for a mechanic's lien was correct, and insists that the books in which the accounts were kept should have been produced. There appears to be little cause for complaint. Averill was examined, and stated, without objection, that he furnished the lumber for which suit was brought, and that the prices charged in the account were the ordinary and reasonable charges. If he actually sold the lumber, and was able to state the amount and the price of the same, there was no occasion for the use of the books. It appears, however that a few of the sales had been made by a salesman in his employment, and that he had to rely upon the books to some extent. It would have been a more orderly and correct practice to have produced the books in establishing his account. The books, however, were brought into court and used by the plaintiff in error in his cross-examination, and they corresponded exactly with the proof which had been made. Although not formally introduced in evidence, they were in the hands of the adverse party, and sufficiently before the court to enable it to reach a correct conclusion. It does not appear...