Mitchell Planing Mill Company v. Allison
| Decision Date | 09 March 1897 |
| Citation | 40 S.W. 118,138 Mo. 50 |
| Parties | Mitchell Planing Mill Company, Appellant, v. Allison et al |
| Court | Missouri Supreme Court |
Transferred from the Kansas City Court of Appeals.
The essential facts necessary to an understanding of the opinion are to be found in the report of this case in the Kansas City Court of Appeals, 71 Mo.App. 251.
Reversed and remanded.
C. T Garner & Son for appellant.
(1) The trial court erred in excluding the lien from the jury and in instructing to find against the plaintiff as to W. M Allison. The account filed in the circuit clerk's office was itemized and stated that said material was delivered and used in the building between April 20, 1893, and July 19, 1893, and the petition stated that plaintiff commenced to furnish said material on April 20, 1893, and continued to furnish the same until July 19, 1893. It is therefore insisted that the plaintiff came clearly within the lien law. Peck v. Bridwell, 10 Mo.App. 524; Peck v. Bridwell, 6 Mo.App. 451; Hayden v. Wulfing, 19 Mo.App. 353. (2) It has been repeatedly held by this court and by the supreme court that the mechanics' lien law is highly remedial in its nature and should receive a liberal construction. De Witt v. Smith, 63 Mo. 263; Morgan v. Railway, 76 Mo. 172 and a long line of authorities there cited. (3) It is insisted that the court erred in giving judgment against the plaintiff for the costs of this suit on the motion of defendant under section 210, Revised Statutes 1889, where it provides that suit instituted in circuit court against an estate within one year the party shall pay all costs. The mechanic lien law requires that the original contractor shall be made a party to the suit, and the plaintiff in this case was compelled to make the administrator of R. E. Brown a party defendant, and to compel the plaintiff to pay the costs in doing something that the law requires is unjust and unfair, and appellants insist that such a judgment should not have been rendered.
Lavelock, Kirkpatrick & Divelbiss for respondents.
(1) Motions to be reviewed on appeal must be incorporated in the bill of exceptions. Butcher v. Keil, 1 Mo. 262; U. S. v. Gamble, 10 Mo. 457; City of St. Louis v. Milligan, 18 Mo. 181; Christy's Adm'r v. Myers, 21 Mo. 112; Loudon v. King, 22 Mo. 336; Brown v. Foote, 55 Mo. 178; Blount v. Zink, 55 Mo. 455; Corby v. Tracy, 62 Mo. 511; State ex rel. v. Burckhartt, 83 Mo. 430; Arnold v. Boyer, 108 Mo. 310; State v. Henderson, 109 Mo. 292; Kohn v. Lucas, 17 Mo.App. 29; Hubbard v. Quisenberry, 32 Mo.App. 459; Perkins v. Bakron, 39 Mo.App. 331; Bank v. Finks, 40 Mo.App. 367; Crow v. Stevens, 44 Mo.App. 137; Coquard v. Prendergrast, 47 Mo.App. 243; Wilson v. Scott, 50 Mo.App. 329; School Dist. v. Holmes, 53 Mo.App. 488; Elliott on App. Proced., sec. 817. (2) Errors not complained of in motion for new trial are not reviewable on appeal. Ridenhour v. Railway, 102 Mo. 270; Lyon v. LaMaster, 103 Mo. 612; Baker v. Railway, 107 Mo. 230; Haynes v. Town of Trenton, 108 Mo. 123; State v. Noeninger, 108 Mo. 166; State v. Grote, 109 Mo. 345; Williams v. Railway, 112 Mo. loc. cit. 485; City of St. Louis v. Sieferer, 111 Mo. loc. cit. 665; Mays v. Mays, 114 Mo. 536; State v. Horn, 115 Mo. 416; State v. Cantlin, 118 Mo. loc. cit. 111; Wilson v. Taylor, 119 Mo. 626; Vanstone v. Goodwin, 42 Mo.App. 39; State v. Morton, 42 Mo.App. 64; Connelly v. Shamrock Ben. Soc., 43 Mo.App. 283; State v. French, 47 Mo.App. 474; Link v. Link, 48 Mo.App. 345; Palmer v. Shenkel, 50 Mo.App. 571; Smith v. Zimmerman, 51 Mo.App. 519; Middleton Gro. Co. v. Day, 54 Mo.App. 419; McManus v. Watkins, 55 Mo.App. 92. (3) The taxing of the costs against plaintiff in this case was an adjudication by the court; was a matter of exception; and alleged errors therein should have been called to the attention of the court in the motion for new trial. 1 R. S. of Mo. (1889), sec. 210; Mann v. Warner, 22 Mo.App. 577; Bosley v. Parle, 35 Mo.App. 232; Link v. Link, 48 Mo.App. 345; Elliott on App. Procedure, sec. 817. (4) The court did not commit error in excluding the lien papers offered by the plaintiff. 2 R. S. of Mo. (1889), sec. 6709; Curless v. Lewis, 46 Mo.App. 278; Holtschneider v. Page, 51 Mo.App. 285; Standish v. Petitt, 2 Mo. Leg. News, 442; Bradish v. James, 83 Mo. 316; Coe v. Ritter, 86 Mo. 277; Rude v. Mitchell, 97 Mo. 365. (5) The verdict of the jury was for the right party, and as no error was committed by the court, materially affecting the merits of the cause, the judgment of the trial court should be affirmed. 1 R. S. of Mo. (1889), sec. 2303; Orth v. Dorschlein, 32 Mo. 366; McLeod v. Skiles, 81 Mo. 595; Valle v. Picton, 91 Mo. 207; Land Co. v. Hays, 105 Mo. 153; Brandon v. Carter, 119 Mo. 572; Walter v. Heoffner, 51 Mo.App. 53; Goodwin v. Railroad, 53 Mo.App. 10; School District v. Holmes, 53 Mo.App. 492; Harris v. Powell, 56 Mo.App. 24.
The statement and opinion of the Kansas City court of appeals sufficiently disclose the decisive facts on which judgment must be pronounced on this appeal. Our learned brethren of that court sent the cause to the supreme court under the sixth section of the constitutional amendment of 1884, because they recognized that the result they had reached was contrary to the previous decision of the St. Louis court of appeals in Hayden v. Wulfing (1885) 19 Mo.App. 353. Other decisions of the latter court might be mentioned which accord with the Hayden case on the point of present difference between the appellate courts, for instance, Kearney v. Wurdeman (1889) 33 Mo.App. 447; Bruns v. Braun (1889) 35 Mo.App. 337; Mesker v. Cutler (1892) 51 Mo.App. 341; Bambrick v. Church Ass'n (1893) 53 Mo.App. 225.
The substance of the controversy is within a narrow field. The action is to enforce a mechanics' lien. The learned trial court excluded the paper that had been filed for the purpose of securing a lien. In so doing the court doubtless intended to follow the ruling of the Kansas City Court of Appeals in Curless v. Lewis (1891) 46 Mo.App. 278. One objection (which the learned judges of the Kansas City court of appeals found to be fatal) was that the itemized statement fails to mention any dates. At the close of the items is this language: "Delivered and used in the building above described between April 20, 1893, and July 19, 1893."
The affidavit accompanying the claim of lien also recites (among other things) "that said demand accrued within four months prior to the filing of this lien."
The judgment of the Kansas City appellate court was rendered in this cause in 1895, after the opinion of the second division of the supreme court in McDermott v. Claas (1891) 104 Mo. 14 (15 S.W. 995), but prior to the decision of the first division in Ittner v. Hughes (1896) 133 Mo. 679 (34 S.W. 1110) both of which cases dealt with the subject now presented. The former case, however, seems not to have been called to the notice of the court of appeals in the proceedings there. We might, perhaps, properly dispose of the first objection by a reference to the rulings cited. But the respect we entertain for the views of our learned brethren of the courts whose opinions are now brought under review moves us to add a few observations.
It is argued that in the absence of dates a list of items of materials, used in the erection of a building, is not "a just and true account," as intended by the mechanics lien act. A just and true account of the demand, claimed as a lien, is positively required, subject to some qualifications (section 6715) not material to this case. R. S. 1889, sec. 6709. The same language (as to the sort of account to be filed to obtain a lien) applies, however, equally to original contractors, subcontractors and all other persons authorized to file lien claims.
In McWilliams v. Allan (1870) 45 Mo. 573, an account was defined to be a "detailed statement of mutual demands in the matter of debt and credit between parties, arising out of contract, or some fiduciary relation." It was held then that a mere statement of a balance due was not good as a lien account, even between the first contractor and owner. But that case must be considered greatly limited, if not in effect overruled, by Hilliker v. Francisco (1877) 65 Mo. 598, in which the statement of a single charge of $ 7,790, based on the contract of a subcontractor (who furnished stone, together with the labor of setting the same) was held valid, as a lien claim against the landowner. The definition of an account in the McWilliams case is certainly incorrect if it implies that every statement outside the terms of that definition is not an account. Though, no doubt, any statement within those terms would be an account, in the sense of the law now before us.
In Coe v. Ritter (1885) 86 Mo. 277, it was said that a just and true account is expected to contain "all the various items and dates that go to make it up, for this is the accustomed meaning of the words." But in that case the paper before the court did contain dates "ranging from September 2 to September 16, 1873." So the question now before us was not then involved, and was not decided.
We find the following among recognized definitions of an account:
"A reckoning of money or business; a statement or record of financial or pecuniary transactions, with their debts and credits, or of money received and paid and the balance on hand or due." Century Dictionary (1889).
"A registry of pecuniary transactions; a written or printed statement of business dealings or debts and credits, and also of other things subjected to a reckoning or review." Webster, International Dictionary (1892).
Some law dictionaries sustain those general definitions. Ander...
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Cabool School Dist. v. United States F. & G. Co.
...plumbing and heating system; and the price agreed upon was prima facie the reasonable value thereof. Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 40 S. W. 118, 60 Am. St. Rep. 544. It will be observed that the petition refers to the plans and specifications from which the amount and ki......