Meyer v. Schmidt

• Decision Date: 14 April 1908
• Citation: 109 S.W. 833,131 Mo. App. 53
• Parties: MEYER et al. v. SCHMIDT et al.
• Court: Missouri Court of Appeals

109 S.W. 833

131 Mo. App. 53

MEYER et al. v. SCHMIDT et al.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. MECHANICS' LIENS—TIME FOR FILING—EVIDENCE—SUFFICIENCY.

Evidence held to sustain a finding that a materialman's lien was filed within four months from the date of the last item of the account.

2. APPEAL—REFEREE'S FINDING—CONCLUSIVENESS.

A referee's finding, supported by evidence and confirmed by the trial court, is not reviewable.

3. MECHANICS' LIENS—ENFORCEMENT—PLEADING—AMENDMENT—PROPRIETY.

In an action to enforce a materialman's lien expressly given by Ann. St. 1906, § 4203, it was proper to allow plaintiffs to amend the petition, after the evidence was all in, so as to charge that the material was furnished "for" defendant's building, where the petition alleged that the contractor erected the building under contract, and that the material was sold to him by plaintiffs and used by him in the building.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by George H. Meyer and another against A. J. Schmidt and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

R. L. Wilson, for appellants. B.F. Davis, for respondents.

BLAND, P. J.

Plaintiffs are partners and dealers in hardware, in the city of Cape Girardeau, under the firm name of Meyer & Schwab. Defendant Schmidt is a contractor and builder. Defendant Cape Girardeau County Fair & Park Association is a Missouri corporation and owner of the fair grounds in Cape Girardeau county. In June, 1905, the association contracted with Schmidt to furnish the material and erect a clubhouse on its fair grounds. Schmidt purchased the hardware, with the exception of some nails, from plaintiffs. The bill for the hardware aggregated $415.75. Schmidt paid $100 on the account, and for the balance ($315.75) plaintiffs filed a mechanic's lien upon the building and the acre of ground upon which it is situated. Defendants filed separate answers. That of Schmidt was a general denial and an offset. The association's answer was simply a general denial. By agreement or consent of all parties the cause was referred to John D. Wilson, Esq., as referee. The referee qualified, heard the evidence, and made a finding of the facts, and recommended that judgment go in favor of plaintiffs and against Schmidt for $315.75, and that plaintiffs have a lien on the real estate described in the lien and petition for $311. The defendant association moved to set aside the report of the referee. The court overruled the motion, confirmed the report, and entered judgment as recommended by the referee. The lien account was opened on July 11, 1905, and continued through the months of August and September, and to and including October 24th. On the latter date, one handle for trap door, two hooks and eyes, and five pounds of 8-penny nails are charged in the account. The next preceding date in the account when material was furnished is October 10th. On February 9, 1906, plaintiffs served written notice on the association of their intention to file a lien on the building and ground upon which it is situated, and filed their lien on the 23d day of the same month.

1. The association contends that Schmidt turned the building over to it on October 10, 1905, and it took possession on that date, settled with Schmidt, and discharged him as contractor, and that, if plaintiffs furnished Schmidt with the materials charged on October 24th, such sale cannot operate to continue the account to that date, so as to validate plaintiffs' lien. If the items charged on October 24th be excluded from the lien account, then plaintiffs did not file their declaration for a lien within four months, as required by statute, and for that reason acquired no mechanic's lien upon the building. Plaintiffs' evidence shows that W. L. Goodman was Schmidt's foreman and had charge of the erection of the building. Goodman swore that he and Phillip Goverau, another carpenter, "overhauled some of the sash in the building, put a handle on a trap-door, laid the floor in the attic to the water tank, put some hooks and eyes on the slip for them to...