Powers & Boyd Cornice & Roofing Co. v. Muir

• Decision Date: 30 November 1909
• Parties: POWERS & BOYD CORNICE & ROOFING CO. v. MUIR et al.
• Court: Missouri Court of Appeals

123 S.W. 490

POWERS & BOYD CORNICE & ROOFING CO. v. MUIR et al.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. MECHANICS' LIENS (§ 146) — SUFFICIENCY OF ACCOUNT OF SUBCONTRACTOR.

An account filed by a subcontractor, which includes extras furnished by him, is sufficient, though it shows only the dates when the first and last item of labor and material was furnished, and thus brings the filing of the lien notice, which embraced the account, within the statutory period.

2. MECHANICS' LIENS (§ 5) — STATUTES — HOW CONSTRUED.

The mechanics' lien statute should be liberally construed to effect its purpose.

3. MECHANICS' LIENS (§ 276) — ENFORCEMENT — AMENDMENT OF PETITION.

A petition to enforce a lien is subject to amendment as in other cases; and, as plaintiff may withdraw a part of his claim for a lien, he may also modify the description of the property, so long as the amended description keeps within the bounds included by the original.

4. MECHANICS' LIENS (§ 136) — VALIDITY OF CLAIM — DESCRIPTION OF PROPERTY.

Rev. St. 1899, § 4207 (Ann. St. 1906, p. 2290), requires that a lien claim shall contain "a true description of the property, or so near as to identify the same." A subcontractor furnishing labor and material for a hotel, and whose lien was limited by section 4203 to one acre, in describing the property gave the numbers of the lots, named the hotel, and located it thereon, and as in a specified addition laid out in a known and designated survey in St. Louis county, and gave the block number of the subdivision. Held, that the description was sufficient though the lots described included a fraction over an acre, where the court could ascertain the location on the lots of the acre on which the lien could be enforced.

5. TRIAL (§ 379) — TRIAL TO COURT — ADMISSION AND EXCLUSION OF TESTIMONY — EFFECT OF ERROR.

The same strictness as to the admission and exclusion of testimony is not applied in cases determined by the court as in cases tried before a jury, and it is to be presumed that, even if some evidence is admitted that in a trial by jury would not be relevant or competent or the best evidence, its weight is determined by a judge learned in the law, and its application to the facts in evidence.

6. TRIAL (§ 379) — BY COURT — RECEPTION OF EVIDENCE — EFFECT OF ADMISSION.

When the court without a jury admits evidence, it does not follow that he is bound by it as relevant or competent, and his subsequent judgment may show that he has not been led into error by it.

7. TRIAL (§ 377) — BY COURT — ADMISSION AND EXCLUSION OF EVIDENCE.

Within reasonable bounds, and where no obvious error is committed, a court trying a case without a jury has much more latitude in the admission and exclusion of evidence than in a case tried and determined by a jury.

8. PLEADING (§ 369) — SINGLE OR ENTIRE CAUSE — ACTION ON MECHANIC'S LIEN CLAIM — ELECTION.

In an action on a lien claim for work and labor done and materials furnished under one contract to erect a building, the addition of items, consisting of extras, outside of the original contract did not split up the cause of action, and require its division into separate counts; and hence there was no error in overruling a motion to require plaintiff to elect on which of its causes it would proceed and dismiss as to the other.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by the Powers & Boyd Cornice & Roofing Company against Matthew W. Muir and others. From a judgment for plaintiff, the Trust Company of St. Louis County, one of the defendants, appeals. Affirmed.

Action to establish a mechanic's lien was brought by plaintiff, a subcontractor in the erection of the building, against Muir, the principal contractor, Epworth Hotel Construction & Real Estate Company, hereafter referred to as the Hotel Company, owner of the premises at the time the material was furnished and labor done, and the Trust Company of St. Louis County, hereafter referred to as the Trust Company, holder of a deed of trust on the property, and also grantee of Thomas K. Skinker, the latter having purchased the property at a sale by the assignee of the Trust Company. It appeared by the answer of Mr. Skinker, as well as by the averments of the petition, which were not denied, that on the 20th of February, 1905, the Trust Company, being assignee of the Hotel Company, offered the property for sale at public auction, subject to a deed of trust in which it was trustee, "and subject to all mechanics' liens against said property," and that at that sale the property was bought in by Mr. Skinker, "subject to the trust indebtedness and the mechanics' liens," but that in bidding in the property Mr. Skinker had acted for the Trust Company, and he appears to have conveyed all his interest in it to that company, so that while made a defendant originally, the case was dismissed as to him. Another party, a Mr. Wilke, was also originally made defendant as the holder of the notes secured by the deed of trust above mentioned, but Mr. Wilke died pending the action, and it was dismissed as to him.

The mechanic's lien notice and claim was filed in the office of the circuit clerk of St. Louis county February 21, 1905. In this notice it is stated that the account filed by plaintiff, with the view to avail itself of the benefit of the mechanic's lien statute, is for work and labor done and materials furnished by plaintiff, under a contract with M. W. Muir, original contractor, with Epworth Hotel Construction & Real Estate Company, owner, "upon, to and for the buildings and improvements described as follows, to wit: One three-story brick and frame hotel building, known as `Hotel Epworth,' No. 6,600 Washington avenue, St. Louis county, Missouri, and situate on the following described premises, to wit: Lots 1, 2, 3, 4, 5 and 6, of block 2, of a subdivision in United States survey No. 378, township 45, range 6, situated in the county of St. Louis, state of Missouri, a plat of which subdivision is of record in the office of the recorder of deeds of St. Louis county, Missouri, in Plat Book No. 2, p. 60. Said lots are contiguous to each other, having an aggregate front of 300 feet on the south line of Rosedale Place by a depth south with that width of 200 feet to an alley, said subdivision being known and designated as Rosedale Heights and being the same property described in a certain deed of trust recorded March 10, 1904, in Book 148, p. 334, of the records of the office of the recorder of St. Louis county, Missouri, said premises, buildings and improvements belonging to and being owned by Epworth Hotel Construction & Real Estate Company, which said account, the same being hereby filed, in order that it may constitute a lien upon the buildings, improvements and premises above described, is as follows." Then follows the account showing debits and credits. The account, dated December 28, 1904, against defendant Muir, in favor of plaintiff, sets out the items of debit without dates to them totalling $2,209.61, followed by cash credits, date of each payment being given, and amounting to $809.61, leaving a balance due of $1,400, which is the amount sued for with interest. This account is followed by this statement: "That the first item of labor and material of said account was furnished on the 23d day of February, 1904, and the last item thereof was furnished on the 20th day of December, 1904, on which last-named day said account accrued and became due and payable and all of said items constituted one continuous account." The affidavit following the account is in the usual form, stating that the foregoing is a true description of the property, "upon, to, and for which said materials were furnished, and said work and labor done and to which this lien is intended to apply, or so near as to identify the same." The affidavit further avers that at least 10 days prior to the filing of the lien plaintiff gave notice to the Hotel Company, as owner of the property, and to the Trust Company, as assignee of the Hotel Company, of its claim, etc., and of its intention to file a lien therefor, and that the Hotel Company, at the date of the furnishing of the material and labor, was and still is, as affiant is informed and believes, the owner of the premises and of the buildings and improvements thereon, "which said premises, buildings, and improvements are intended to be charged with this lien." There is no question over the fact of this notice having been given to the owners. The deed of trust under which the defendant Trust Company claims is dated March 7, 1904.

In the original petition filed in the case the premises are described as above. The second amended petition, after averring that the hotel building was erected on all of lots 1 to 6, inclusive, and that it does not cover the whole of any one of the lots, and that said lots by actual measurement include a little more than 1 acre, "avers that said hotel building and all parts of it are erected upon the parts and parcels of lots, described as follows, to wit: Beginning," etc. Here follows a description by courses and distances, concluding with the statement that the area described contains "a fraction less than one acre." This particular description was afterwards amended in this second amended petition, upon which petition the case went to trial, the description in the final amended petition, after giving the description of the lots as in the first petition, continuing to and including the words "beginning," describes the property by courses and distances and by boundaries, and concludes with the statement that the area described contains "one acre." The prayer of the amended petition was for the enforcement of the lien "against so much of lots 1 to 6 as is included within these boundaries." At the trial it was in evidence that the survey and the description as last above given was made by the county surveyor of the county. Evidence was...