Morrison v. Hancock

• Decision Date: 31 March 1867
• Parties: WILLIAM MORRISON, Appellant, v. ELIAS C. HANCOCK and THE SOUTHERN HOTEL COMPANY, Respondents.
• Court: Missouri Supreme Court

40 Mo. 561

WILLIAM MORRISON, Appellant,

v.ELIAS C. HANCOCK and THE SOUTHERN HOTEL COMPANY, Respondents.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Garesche & Mead, for appellant.

I. The receipts or tickets are evidence, and should not have been excluded. Whenever the act of the agent is admissible, his declarations, at the time, are evidence as part of the res gestæ--1 Greenl. Ev. § 113; Gamble v. Johnson, 9 Mo. 616; Marr v. Hill. 10 Mo. 323; Pool v. Bridges, 4 Pick. 378; Odd Fellows' Hall v. Musser, 24 Penn. 510; Crowther v. Gibson, 19 Mo. 365.

II. The court had no right verbally to instruct the jury--Prac. at Law, 1268, § 47, R. C. 1855; Mattison v. State, 6 Mo. 402; Bichler v. Coonce, 9 Mo. 347, 350.

III. The plaintiff, in the absence of any fraud or collusion, and upon the proof that he had first notified the hotel company before he delivered the lumber, was entitled to recover--Wallace v. Melchoir, 2 Browne, 104; 2 Sergt. & R. 172. And where a similar delivery of materials was proven-- Greenway v. Turner, 4 Md. 305; White v. Miller, 18 Penn. 54. Such laws are constitutional; they deprive no one of his property, but on the contrary secure to every one what is justly due to him, giving each one priority of right according to the claims of natural justice--Dubois Adm'r v. Wilson, 21 Mo. 214.

Whittelsey, for respondents.

This was a suit to recover judgment against Hancock & Stannard as contractors, and to enforce a mechanic's lien against the Southern Hotel. Hancock made default; Stannard was not served; the hotel company answered, denying all the allegations of the petition. The plaintiff dismissed the suit as to Stannard.

At the trial plaintiff proved the sale of the lumber sued for and its delivery at the mill of H. & S., but entirely failed to prove that it was used in the construction of the defendant's building so as to create a lien. To supply this defect, plaintiff inquired of witnesses as to what Hancock, the defendant, had said as to the purposes for which the lumber was intended to be used. To this the hotel company objected upon the ground that H. was not its agent so as to bind the company, and that its property was subject to a lien, not by contract, but from the fact that the materials were used in the building. The court sustained the objection and plaintiff excepted.

The court put the issue to the jury to decide whether the materials were used in the hotel, and instructing them that Hancock's statements could not affect the hotel company. The jury found that the materials were not used in the hotel. Judgment refusing to enforce the lien.

As the plaintiff was only a sub-contractor, his right to a lien depended upon his compliance with the statute, showing that the materials were furnished and used in the construction of the hotel building--Sess Acts 1856-7, p. 668 § 1; Hause v. Carroll, 37 Mo. 578; Hause v. Thompson et al., 36 Mo. 450. As the contractors were not agents for the owners of the building, they could not bind the company by mere contract; not being agents, their statements constituted no part of the res gestæ. Hancock not being agent for the company, his statements as to the purposes for which he purchased the lumber were mere hearsay, as to the company, and could not affect the company in any way, it being shown that the lumber was not delivered at the building, but at a different place, and there being no evidence that it was used in the building.

FAGG, Judge, delivered the opinion of the court.

The giving of improper instructions, and the exclusion of competent evidence offered on the part of the appellant, constituted the errors chiefly complained of in this case.

This was a proceeding in the St. Louis Circuit Court to enforce a lien against the Southern Hotel, in the city of St. Louis, for lumber furnished for the building of the same. The defendants, Hancock & Stannard, were alleged to be the contractors for the building, and the parties at whose instance the materials were furnished.

The suit was dismissed as to Stannard, and upon the trial the jury found for the plaintiff only as against the other defendant, Hancock, and judgment was rendered accordingly. The only answer in the case was a separate one on the part of the hotel company. No appearance was entered for either of the other defendants.

It is shown by the bill of exceptions that, at the conclusion of the testimony on the part of the plaintiff, the court was asked to declare that there was no legal evidence to authorize the plaintiff's recovery. This was refused, but accompanied by a verbal statement on the part of the judge, which is said to be erroneous, as tending to influence the jury in their estimate of the evidence. The remark that he did not feel authorized to do so under the law as laid down by this court, was not sufficient to warrant any inference on the part of the jurors prejudicial to the plaintiff's case. The instructions given, as well as the exclusion of the testimony...