N. O. Nelson Mfg. Co. v. Doherty
| Decision Date | 29 January 1917 |
| Docket Number | No. 18194.,18194. |
| Citation | 191 S.W. 983 |
| Parties | N. O. NELSON MFG. CO. v. DOHERTY et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; James E. Withrow, Judge.
Action by the N. O. Nelson Manufacturing Company against Charles Doherty and others. From a judgment for plaintiff, defendants Claude E. Vrooman and others appeal. Reversed and remanded.
This action was brought by plaintiff as a dealer in plumbing supplies, to enforce a mechanic's lien against the St. Regis Apartments, situated on Lindell boulevard, near Forest Park, for the sum of $7,830.01, being balance claimed for material said to have been furnished to Charles Doherty, original contractor for furnishing and installing the plumbing materials in said building. Charles E. Vrooman and the St. Regis Realty & Investment Company were the owners of the lot and building.
The petition is in the usual form for a materialman's mechanic's lien, and contains the usual allegations of that kind of case. It sets out an itemized statement of the materials furnished in said building, of the total reasonable value of $12,040.90. The first item of the account is dated December 17, 1908, and the last item of labor and material was furnished on June 28, 1909. The account was filed in the office of the clerk of the circuit court of the city of St. Louis, Mo., on September 3, 1909. The credits are as follows: March 24, 1909, cash $4,000; July 14, 1909, $210.89, showing a balance due of $7,830.01, for which plaintiff claimed a mechanic's lien.
Charles Doherty filed a general denial. Vrooman and the St. Regis Realty & Investment Company filed separate, though identical, answers. They denied that the account was a true and correct one, and denied that all just credits had been given. These answers, in addition to the general denials contained therein, aver that, on or about January 16, 1909, the St. Regis Realty & Investment Company gave its check to Doherty, the contractor, for $2,000, to be paid by the latter to plaintiff for, and on account of, materials furnished by plaintiff to Doherty for defendants' building; that Doherty paid the sum to plaintiff, with knowledge on the part of the latter that said sum was the proceeds of the $2,000 check aforesaid; that plaintiff received said $2,000, but failed to credit it on the account of Doherty for materials furnished for the building aforesaid, but receipted for only $1,000 for that account; that on January 17, 1909, plaintiff obtained from Doherty's wife, that receipt applying the $1,000 on the St. Regis account and $1,000 on account of other and prior indebtedness of Doherty, and substituted therefor a receipt to Doherty for the whole $2,000, as a credit on account of a prior indebtedness of Doherty to plaintiff; that inasmuch as plaintiff knowingly and willfully deprived St. Regis Realty & Investment Company of a credit to which it was entitled, the plaintiff was not entitled to any lien whatever.
The case was tried as though replies had been filed containing a general denial. By consent of parties, the court referred the cause to Charles W. Bates, Esq., to try all the issues and to report his findings and proceedings to the court.
It appears from the contest before the referee that the issues were narrowed down to two propositions: First, whether the defendants were entitled to have plaintiff's account credited with the $2,000 paid Doherty aforesaid, and whether the failure of plaintiff to credit defendants with said sum precluded it from asserting a mechanic's lien against the property aforesaid; and, second, whether respondent is precluded from asserting its mechanic's lien, on account of the failure of plaintiff to incorporate as a part of its account, an itemized statement of the material delivered to Doherty during the first four months of deliveries, which plaintiff claims was settled for by the $3,500 paid to it by defendants through the contractor.
The referee found for appellants upon both the above propositions, and recommended that judgment be entered in behalf of appellants. In order to avoid repetition, the testimony, as far as necessary, will be considered hereafter in the opinion. The court disregarded the findings, conclusions, and recommendation of the referee, sustained some of respondent's exceptions, made its own findings and conclusions, sustained the lien of respondent as filed, less $1,000, and entered judgment charging the property of appellants with the amount found due as aforesaid.
Appellants filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.
Jesse McDonald, Frank H. Braden, and Arnold Just, all of St. Louis, for appellants. Seneca C. Taylor and Robert W. Hall, both of St. Louis, for respondent.
RAILEY, C. (after stating the facts as above).
I. Are the appellants, on the record presented here, entitled to defeat respondent's mechanic's lien, because of the latter's failure to itemize and include in its account the material mentioned in evidence, sold and delivered to Doherty, as contractor, between August 5, 1908, and December 1st of the same year? On March 30, 1908, the St. Regis Realty & Investment Company entered into a contract with Charles Doherty, to do all the plumbing, complete, for the St. Regis Apartments on Lindell boulevard. The work was to be done without delay, in a workmanlike manner, according to plans and specifications, for the sum of $15,500. On July 1, 1908, plaintiff submitted a bid to Doherty, as such contractor, for all the materials which would be required in doing the plumbing work for said apartments, a list of which had been previously furnished by Doherty, as contractor, on May 27, 1908, and the entire order was given July 1, 1908. The first material was furnished August 5, 1908, and other material was delivered by plaintiff to Doherty, as contractor, between said date and December 1, 1908, of the reasonable market value of $3,500. We are satisfied, from all the testimony in the case, that all of the last-mentioned material was received by Doherty as such contractor, that the same went into the St. Regis Apartments, under the general contract aforesaid, and that said material was of the reasonable market value of $3,500.
On December 1, 1908, the St. Regis Realty & Investment Company issued and delivered its check, payable to Charles Doherty, for $3,500, on the German-American Bank of St. Louis, Mo., signed by Charles E. Vrooman. Inserted in said check, is the following: "Account of plumbing furnished on St. Regis." Doherty deposited this check to his own credit, and on December 2, 1908, gave to plaintiff a check for said $3,500, and received from Luenstroth, the collector of respondent, a receipt, of which the following is a copy:
"St. Louis, Mo., December 2, 1908
"Received of Charles Doherty thirty-five hundred
dollars, payment in full for material furnished
St. Regis Apartments to date. $3,500
"N. O. Nelson Manufacturing Company
"By W. J. Luenstroth."
(Italics are ours.)
Doherty testified in regard to above receipt as follows:
"
Mr. Vrooman, in his testimony, does not deny having received from Doherty the above receipt for $3,500. It was introduced in evidence, and marked as Defendants' Exhibit 14.
Counsel for appellants, in their brief, in discussing the above question, say:
"The question of law to be decided, then, may be stated: Can a materialman furnishing material for a building under one continuous contract take a point in the account where the debits and credits balance, agree with the contractor that the credit shall be taken in full to date, deliver further materials on the same job under the same contract, and file his lien account against the owners, ignoring that part before the balance and including only that part thereafter?"
For the purposes of the case, it may be conceded that if the above should transpire as stated, without the knowledge and consent of the owner of the building, it might invalidate the entire lien, but, on the other hand, if...
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