McLaughlin v. Schawacker

• Decision Date: 05 June 1888
• Citation: 31 Mo.App. 365
• Parties: LUKE MCLAUGHLIN, Respondent, v. CHRIS. SCHAWACKER et al., Appellants.
• Court: Missouri Court of Appeals

31 Mo.App. 365

LUKE MCLAUGHLIN, Respondent, v. CHRIS. SCHAWACKER et al., Appellants.

Court of Appeals of Missouri, St. Louis.

June 5, 1888

Appeal from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Affirmed.

W. B THOMPSON, for the appellants: The petition in this case is not sufficient under section 3176, of the Revised Statutes to entitle the plaintiff to a mechanic's lien against the defendants' property, for the reason that the account set forth in the petition embraces labor, lime, brick, and other materials, and such a petition is open to the objection that it embraces a lumping charge. Edgar v. Salisbury, 17 Mo. 271; Lewis v. Cutter, 6 Mo.App. 54; Kling v. Construction Co., 7 Mo.App. 411; Cotling v. Nast, 8 Mo.App. 573; Russell v. Bell, 44 Pa.St. 47; Lee v. Berg, 66 Pa.St. 336; Phillips' Mechanic's Liens, 489; Hilliker v. Francisco, 65 Mo. 598, 603; Foster v. Wulfing, 20 Mo.App. 85. It was error in the court below to proceed to a final judgment against the owner on the issue of the lien without service of the amended petition upon the contractors, and the objection to any testimony being introduced in support of the allegation of the amended petition, was for that reason, and for that alone, fatal to plaintiff's case, Rev. Stat., secs. 3205, 3207, 3209, 3210; Horstkotte v. Menier, 50 Mo. 158; Janney v. Spedden, 38 Mo. 395; Ticknor v. Voorhis, 46 Mo. 110; Young v. Woolfolk, 33 Mo. 110; Skinner's Ex'r v. Hutton, 33 Mo. 244; Bayse v. Ambrose, 28 Mo. 39; Neidenburger v. Campbell, 11 Mo. 351; Foster v. Wulfing, 20 Mo.App. 87. The petition fails to state a cause of action against the defendants' property to entitle the plaintiff to a mechanic's lien in this, that the petition fails to aver that there was any material, work, or labor performed by the plaintiff at the request of the defendants, or that the material was reasonably worth any prices set forth. Heinrich v. Gymnastic Society, 8 Mo.App. 588; Burrough v. White, 18 Mo.App. 229; Graves v. Pierce, 53 Mo. 423; Lowis v. Cutter, 6 Mo.App. 54; Nelson v. Withrow, 14 Mo.App. 270; Gaus v. Hussman, 22 Mo.App. 115. The petition failed to state a cause of action because there was no just and true account filed with plaintiff's petition, the petition itself showing the item on the debit side of the account, " To allowance made for shortage in building and walls, credit agreed to be given Schawacker, $117.64." On the credit side of the account, " Credit for shortage as above, $117.64," which of itself shows, without any further argument, that there was no credit given. The account made up of two lumping charges--first, the item of labor and materials, $426.57, which says, " Including brick, mortar, labor, and all materials" ; another item of $3.063.40, " To labor and materials, including brick, mortar, labor, and all materials," are lumping charges on their face, and the subsequent parts and items of the account are made up in order to evade sections 3202 and 3216 of the Revised Statutes. By the confusion of this account the judgment also includes 7,800 brick, which was not embraced in the contract price on the theory that the walls of the building were to be six feet longer than they were constructed, at $12.50 per thousand, amounting to $97.50. Murphy v. Murphy, 22 Mo.App. 18; Gauss v. Hussman, 22 Mo. 115; Henry v. Rice, 18 Mo.App. 510; Schulenberg v. Prairie House, 65 Mo. 295; McWilliams v. Adams, 45 Mo. 573, 575; Coe v. Ritter, 86 Mo. 277, 287; Johnson v. Building Co., 23 Mo.App. 546. In order to establish a mechanic's lien against the property of the defendant, the statutory requirement that the lien must set out the items of the account cannot be cured by oral evidence to show that all of the items of mortar, labor, and all materials can be included in one charge; the lien claim must set out the items, though the contract is for a gross sum. The testimony of the plaintiff's witnesses was an attempt to explain the two lumping charges in plaintiff's lien claim, but in all of these cases the witnesses testified that all of the items could be separated, and that the charge was made in a lump, and included the several items. Kling v. Construction Co., 7 Mo.App. 410; Nelson v. Withrow, 14 Mo.App. 270; McWilliams v. Adams, 45 Mo. 573, 575; Coe v. Ritter, 86 Mo. 277, 287; Johnson v. Building Co., 23 Mo.App. 546. The comment of the court at the trial of this case, in the presence of the jury, in the following words: " You are entitled to no credit when you repudiate the contract and insist upon their proving the reasonable value," was not only error, but it was calculated to shield the plaintiff's false and fictitious account. Rev. Stat., sec. 3172; Henry v. Rice, 18 Mo.App. 510; Garnett v. Berry, 3 Mo.App. 202; Barker v. Berry, 8 Mo.App. 446; Planing Mill Co. v. Brundage, --Mo. App. 275.

CAMPBELL & RYAN, for the respondent: Service of the amended petition upon defendants Dempsey and Schawacker was not necessary. City v. Gleason, 15 Mo.App. 25, 29. The amended petition was filed within ninety days after the lien was filed, and this was as to the defendant Davis a commencement of this suit; that the writ issues subsequently makes no difference. Gosline v. Thompson, 61 Mo. 471. The exception made by appellant at the trial to language of the court (which we say was not prejudicial to his case) cannot be urged here, as it was not saved in the motion for a new trial. This is a " well-settled rule of practice" in our appellate courts. Railroad v. Clark, 68 Mo. 371, 374; McCord v. Railroad, 21 Mo.App. 92, 96; Simpson v. Schulte, 639, 642. The point most urged by appellant is that the lien account was insufficient. It was sufficient under the rulings of this and other courts of authority. Johnson v. Building Co., 23 Mo.App. 547; Hayden v. Wulfing, 19 Mo.App. 365; Pue v. Hetzell, 16 Md. 548; Shaw v. Barnes, 5 Barr (Pa.) 18; Donahoe v. Scott, 12 Pa.St. 45; Knowlay v. Ellis, 12 Phil. 396; Ricker v. Jay, 72 Me. 107; Nelson v. Withrow, 14 Mo.App. 270, 277; Lowis v. Cutter, 6 Mo.App. 54, 56; Kling v. Construction Co., 7 Mo.App. 410, 411; Codling v. Nast, 8 Mo.App. 573. The mechanic's lien statute is highly remedial in its nature, and should receive a liberal construction to advance the just and beneficent objects had in view in its passage. De Witt v. Smith, 63 Mo. 263; Hayden v. Wulfing, 19 Mo.App. 357. The complaint about the item of $117.64 is not well taken. Whether or not each item in the account is a charge on the building could be determined by inspecting same. Unless lien and non-lien items are so mingled as to be inseparable the account is a good lien account, to the extent of the items which constitute a charge on the property. Johnson v. Building Co., 23 Mo.App. 546, 549; Kershaw v. Fitzpatrick, 3 Mo.App. 575; Edgar v. Salisbury, 17 Mo. 273.

OPINION

THOMPSON J.

This is an action by a subcontractor to recover a balance due from a firm of principal contractors and to establish a mechanic's lien for such balance against a lot of ground and a building. The original petition was filed on the nineteenth of May, 1887, and the principal contractors, Dennis Dempsey and William J. Dempsey, and also the owner, Christ opher Schawacker, were made defendants. Personal service was had upon each of these defendants. On the sixteenth of July, 1887, two other defendants, Maria W. Johnson and John H. Tennent, entered their appearance, and the plaintiff, by leave of court, filed an amended petition, and on his motion summons was ordered for the other defendants, Mathilda Davis, James S. Davis, her husband, and James S. Davis as trustee for Mathilda Davis. In accordance with this motion, summons was issued for the last-named defendants on the eighteenth of July, which was returned duly executed. The amended petition was not served on the defendants Dennis Dempsey and William J. Dempsey. These defendants filed no answer. The other defendants jointly answered by a general denial, followed by a special traverse of the essential allegations of the amended petition, and an averment that the plaintiff had failed to comply with the statutes in reference to mechanic's liens by filing a just and true account of any work or materials furnished, etc. The original petition is not set out in the record, so that it does not appear that it was in any respect different from the amended petition except in respect of the additional defendants. A default was taken against the defendants Dennis Dempsey and William J. Dempsey There was a trial by a jury of the issues made by the amended petition and the answer of the other defendants, which resulted in a verdict and judgment against the defendants Dennis Dempsey and William J. Dempsey in the sum of $1,162.74, and a finding that the plaintiff had established a mechanic's lien on the building and lot in the sum of $1,008.47, subject to a prior lien in favor of the defendant Maria N. Johnson, for the amount due under a certain deed of trust. After an unsuccessful motion for a new trial, the defendants, other than Dennis Dempsey and William J. Dempsey, prosecute this appeal. The record is voluminous. The points insisted upon by the appellants are the following:

I. That the petition is not sufficient, under section 3166, Revised Statutes, to entitle the plaintiff to a mechanic's lien, for the reason that the account therein set forth embraces labor and lime, brick and other materials, and the petition is open to the objection that it embraces a lumping charge. This account was as follows:

" January 19, 1887.

To contract price for brick-work on building, 414 So. 3rd street, St. Louis, under contract with William Dempsey and D. J. Dempsey $5,738 00

These labor and materials furnished from September 30, 1886, to and including January 19, 1887. (Made up as...