Peck v. Bridwell

• Decision Date: 28 June 1881
• Citation: 10 Mo.App. 524
• Parties: CHARLES H. PECK ET AL., Respondents, v. RICHARD F. BRIDWELL ET AL., Appellants.
• Court: Missouri Court of Appeals

10 Mo.App. 524

CHARLES H. PECK ET AL., Respondents,

v.RICHARD F. BRIDWELL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 28, 1881.

1. In an action on a mechanic's lien, an allegation that the items of the account were furnished “between the 6th and 17th of September, 1872, on which last day the account accrued,” will, after verdict, be taken as stating that the last item was furnished on the 17th.

2. If it can be gathered from the petition, though not explicitly stated, that the dwellings against which the lien was filed constituted one building, erected under one contract, this will be sufficient after verdict.

3. The doctrine of aider by verdict applies to the case where that which ought to be explicitly stated is not so stated, but may be gathered from other allegations from which it is implied.

4. An intention to waive a mechanic's lien is not shown by proof that a security not inconsistent with the lien has been taken.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

JOHN JOHNSTON, for the appellant: The petition is insufficient in not stating the date of the last items of the account, and in not stating that the dwellings constituted one building erected under one contract.-- Fitzgerald v. Thomas, 61 Mo. 499. The lien was waived by the taking of other security.-- Kinsey v. Thomas, 28 Ill. 502; Gardner v. Hall, 29 Ill. 279; Crosbey v. Carey, 48 Ill. 442; Bennesen v. Thayer, 23 Ill. 374; Brady v. Anderson, 24 Ill. 110.

D. D. DUNCAN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This action was brought on March 12, 1873, under the then existing law of mechanic's liens, by sub-contractor against contractor and owner. The cause was tried without a jury, and the finding was against the contractor, for the debt, and in favor of the lien. During the pendency of the action, the property was bought by Card, who was made a defendant, and whose answer set up a special defence that the bill of lumber in question was not sold to defendant Bridwell, but to one Mason, upon Mason's written order and promise to pay for the same.

1. Defendant Card moved in arrest, on the ground that the petition does not state on what day the last item of the account was filed. The allegation is, that the items of the account were furnished “between the 6th and 17th of September, 1872, on which last day the account accrued.” The lien was filed on January 17, 1873. Unless the last items were furnished on September 17th, it is evident that the lien was too late. The bill of exceptions states that plaintiff introduced evidence tending to prove all the material allegations of the petition. We think that the petition, so far as regards the allegation of time at which the last items were furnished, is good after verdict. The petition is to be subjected to the ordinary rules of pleading. The defective petition that will support a verdict must contain the allegation as to the date at which the last items were furnished, in terms that comprehend the statement in a fair intendment. We think it may be reasonably intended, to support the finding in this case, that the phrase “between the sixth and seventeenth” is meant to include the seventeenth. It must mean this, if the further statement that the account accrued on the...