McMillan And Parker v. The Ball And Gunning Milling Co.
| Decision Date | 17 June 1915 |
| Citation | 177 S.W. 315,190 Mo.App. 340 |
| Parties | McMILLAN AND PARKER, a Firm Composed of J. S. McMILLAN and R. S. PARKER, Respondents, v. THE BALL AND GUNNING MILLING COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon Joseph D. Perkins, Judge.
REVERSED AND REMANDED (with directions). CERTIFIED TO THE SUPREME COURT.
STATEMENT.--This is a suit brought by McMillan & Parker, a copartnership, for the purpose of establishing and enforcing a mechanic's lien against property owned by defendant, The Ball & Gunning Milling Company, a corporation. The firm of Stone & Watts was also joined as a defendant, which firm was the original contractor in erecting an improvement on the land of The Ball & Gunning Milling Company. The plaintiffs entered into a subcontract set out in the record with the original contractors, Stone & Watts, to furnish labor and material which went into the improvement. This contract designated what was to be done and furnished by the plaintiffs, and plaintiff agreed to perform their part of the contract for the lump sum of $ 7200.
There is no claim that the petition fails to state a cause of action. It sets forth the relation the various parties bore to each other, and states that the labor and material were furnished under a subcontract, that the price to be paid for the labor and material furnished was $ 7635, that there had been given credit for cash received and material returned, $ 6781.60, leaving a balance due of $ 818.75. This is followed by a description of the property on which the improvement was constructed, setting forth when the last labor and material were furnished, and stating that within the statutory period a duly verified account was filed in the office of the circuit clerk of Jasper county, and that the statutory notice required of subcontractors was given. The petition closed by praying for judgment in the sum of $ 818.75 against Stone & Watts and asking that the same be declared a lien against the property of The Ball & Gunning Milling Company.
The answer of The Ball & Gunning Milling Company was a general denial.
A judgment was rendered against Watts for the full sum of $ 818.75 and the same was declared a lien against the property of The Ball & Gunning Milling Company. No appeal was taken by Watts, and the record does not disclose what disposition was made of the case as to Stone.
The plaintiffs introduced evidence of having furnished the labor and material called for in their subcontract and that it went into the improvement on The Ball & Gunning Milling Company's land. It was admitted by the plaintiffs that their subcontract only called for the lump sum of $ 7200 as a payment for their labor and material and that credit should be given for the sum of $ 6781.60, which left due on their contract $ 418.40. After the work was started under this contract, Stone & Watts ordered plaintiffs to furnish labor and material to an amount of $ 400.35 as extras--that is, the foundations were made heavier and deeper--which sum, added to the original contract, made the total amount for labor and material furnished $ 7600.35, the amount claimed in the petition, and, allowing for the credit of $ 6781.60, there was left a balance due of $ 818.75, which is the sum for which judgment is asked. The contract set out in the record which was made between plaintiffs and Stone & Watts specifies the labor and material to be furnished.
There was offered in evidence the notice of an intention to file the lien. This notice was signed by plaintiffs and clearly designated the character of the improvement constructed, the land on which it was located, set out that the labor and material were furnished under the subcontract mentioned, and designated the date on which the lien would be filed. As to the foregoing facts there is no dispute. This notice however, named the balance due for which the lien would be filed at the sum of $ 797.15, and described the owner of the land as Ball & Gunning, a firm composed of George Ball and W S. Gunning.
The defendant interposed an objection to the introduction of the notice in evidence because it described a copartnership as owning the land and was addressed to a copartnership rather than to the corporation. The Ball & Gunning Milling Company the defendant named in the petition and the real owner, and further, because the notice described the amount due different from that sued for. The court overruled the objection and an exception was saved.
Plaintiffs then offered in evidence the lien filed in the circuit clerk's office, to which the defendant objected because it was made out against a firm and not against the defendant corporation. The objection was overruled and an exception saved.
The caption of the lien filed with the circuit clerk is as follows: "McMillan and Parker, a partnership, composed of J. S. McMillan and R. S. Parker, Subcontractors against Ball & Gunning, a firm composed of George Ball and W. S. Gunning, owners, and Stone and Watts, a firm composed of R. C. Stone and Len Watts, original contractors." This is followed by a correct description of the improvement and the land on which it was erected. It also contained the following:
This was followed by a proper verification.
Plaintiffs also showed that in talking to Mr. Gunning, who was shown to be the president of the defendant corporation, he said he would refer to Ball as his partner. It was also shown that when the notice offered in this case was served on Gunning personally and before the lien statement was filed he said that Stone & Watts, the original contractors, had been paid in full and that there was nothing due them. There is no evidence in this record showing that the defendant, The Ball & Gunning Milling Company, knew what the terms of the contract were between the plaintiffs and Stone & Watts, nor is it shown that there was any contract whatever as to the extras furnished. So far as the record discloses we cannot tell whether the extras are claimed under any contract or merely the price is fixed as on a quantum meruit.
A jury being waived, the cause was tried by the court, and neither side offered any declarations of law. Judgment was rendered for the full amount of the balance claimed as due, $ 818.75. The defendant filed a motion for a new trial, stating, among other alleged grounds of error, the following:
Judgment reversed and cause remanded.
R. F. Stewart, John P. McCammon and R. M. Sheppard for appellant.
F. T. Stockard and Howard Gray for respondents.
--The appellant complains, first, that the court erred in admitting in evidence the notice of the lien and the lien filed for the reason that both show on their face that they named the owner of the land to be the firm of Ball & Gunning and not the defendant, The Ball & Gunning Milling Company, a corporation; and second, that the statement of the account set out is not a just and true account of the demand claimed as is contemplated by section 8217, Revised Statutes 1909, and that section 8212, Revised Statutes 1909, requires plaintiffs to comply with the section first mentioned in this respect before they have a right to impose a lien for labor and material--in other words, that before plaintiffs have carried the burden of making out a case they must introduce evidence showing a compliance with the provisions requiring that a just and true account be filed.
The respondents meet this contention by asserting that the naming of a partnership as the owner did not mislead the defendant corporation; that the misnaming was an honest mistake and was therefore immaterial. We uphold the respondents in this as the facts show an honest mistake in this respect and that the defendant was in no way hurt or misled, and pass the point by citing the case of The Fruin-Bambrick Construction Co. v. Jones, 60 Mo.App. 1. [See, also, Joplin Sash and Door Works v. Shade, 137 Mo.App. 20, 118 S.W. 1196; Henry v. Plitt, 84 Mo. 237; Bruner Granitoid Co. v. Klein, 100 Mo.App. 289, 73 S.W. 313.]
As to the second point urged by appellant the respondents contend first, that the statement of account filed is sufficient to meet the requirements of the statute, and second, that as the defendant did not object to the introduction of the statement on the ground that it was not a just and true account and because defendant did specifically object because made out against the wrong party, the defendant thereby admitted the sufficiency of the account...
To continue reading
Request your trial