Meyer v. Schmidt

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

109 S.W. 833

131 Mo.App. 53

MEYER et al., Respondents, v. SCHMIDT et al., Appellants

Court of Appeals of Missouri, St. Louis

April 14, 1908

Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.

AFFIRMED.

Judgment affirmed.

Robert L. Wilson for appellant.

(1) No lien can be acquired unless the materials go into the building. Grace v. Nesbit, 109 Mo. 15; Deardorff v. Everhartt, 74 Mo. 37; Schulenberg v. Prairie Home Institute, 65 Mo. 295. (2) After the building is accepted by the owner, being substantially completed, the contractor can not afterwards perform some part that was called for in the contract, but has been omitted in the construction, thereby extend the statutory period within which a mechanic's lien may be filed. The time begins to run from the date of delivery of the building to the owner.

Benj. F. Davis for respondents.

(1) Notwithstanding that section 4207, Revised Statutes 1899 requires the lienor to file "a just and true account of the demand due him" he will not lose his lien for items which are proven by including in good faith separate items which are not proven. Lumber Co. v. Kruger, 52 Mo.App. 418; Walden v. Robertson, 120 Mo. 38; Price v. Merritt, 55 Mo.App. 640; Ittner v Hughes, 133 Mo. 679; Western, etc., v. Mepheam, 64 Mo.App. 50; Ulrich v. Osborn, 106 Mo.App. 492. (2) Issues triable by a jury may be referred to a referee, and in that case the referee is the sole judge of the weight of evidence subject to review by the trial court. Appellate courts will not examine his decision touching weight of testimony. Daly v. Timon, 47 Mo. 516; Dunlap v. Elks Club, 25 Mo.App. 180; Feeney v. Chapman, 89 Mo.App. 371.

OPINION

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 and 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 mechanics' 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 twenty-fourth. On the latter date, one handle for trapdoor, two hooks and eyes and five pounds of eight penny nails are charged in the account. The next preceding date in the account when material was furnished is October tenth. 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 twenty-third 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 twenty-fourth, such sale cannot operate to continue the account to that date so as to validate plaintiffs' lien. If the items charged on October twenty-fourth 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 mechanics' 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 trapdoor, laid the floor in the attic to the water tank, put some hooks and eyes on the slip for them to slip up and down," and that he got all the items charged in the lien account as of October twenty-fourth (except the nails) from plaintiffs on that date and used them in the building on the same day. In respect to the fact that work was done on the building on October twenty-fourth, Goodman was corroborated by Goverau. The evidence for the association shows that it held a fair, beginning October tenth, 1905, on the grounds; that it was very anxious to get possession of the building at the opening of the fair and did in fact take possession of it on October tenth, settled with Schmidt on that date, and paid him or his subcontractors the balance due on the contract price. The acceptance and taking possession of the building was not brought about by any resolution of the board of directors of the association, or by any concerted action of the building committee, but by the action of the chairman or secretary of the committee, with the individual concurrence of two or three of its members. The evidence also tends to show that one member of the building committee objected to receiving the building at the time it was received for the reason, as he contended, it was not completed...