E. R. Darlington Lumber Co. v. Harris

• Decision Date: 26 April 1904
• Citation: 107 Mo. App. 148,80 S.W. 688
• Parties: E. R. DARLINGTON LUMBER CO. v. HARRIS.
• Court: Missouri Court of Appeals

80 S.W. 688

107 Mo. App. 148

E. R. DARLINGTON LUMBER CO. v. HARRIS.

St. Louis Court of Appeals. Missouri.

April 26, 1904.

MECHANICS' LIENS—LIEN ACCOUNT — DESCRIPTION—TIME OF FILING—CONTRACTS FOR EXTRAS — NOTICE TO MATERIALMAN — RUNNING ACCOUNT—WAIVER OF LIEN—ACCEPTANCE OF NOTE.

1. In an action to enforce a materialman's lien, evidence held sufficient to show that the lumber furnished was used in defendant's house.

2. Where a materialman's lien is sought on a platted lot in an incorporated city, and not on country property, the fact that the lien account describes more than an acre of ground, the lot on which the building was constructed containing slightly more than an acre, and being definitely described in the account, is immaterial.

3. Where there are separate contracts between a building contractor and an owner for the performance of different jobs, in order that a lien account filed by the contractor may be good for the entire work it must be filed within the statutory period after the completion of the work under each contract.

4. Where a materialman agreed with the contractor on an estimate of lumber to be used in a building, but furnished considerable additional lumber under the contract, and when lumber was ordered for extra work for which the contractor had made a separate contract with the owner of the building, made no fresh arrangement with the contractor, and knew nothing of his new contract with the owner, and charged the material on the running account with the contractor, which had been continuous from the time the latter began to build the building, its entire account with the contractor would be treated as a continuous and connected transaction, and the lien limitation would not begin to run until the date of the last item.

5. Forty-five days between the date of furnishing the last item for the completion of the original plan of a building and the time of furnishing lumber for extras is not such an interval as to affect a materialman with constructive notice that the extras were furnished under a new arrangement between the contractor and the owner, or to raise a presumption that the materialman sold the lumber for extras under a separate agreement.

6. The right to a materialman's lien is not waived by the acceptance of a note on the owner's indebtedness, with the understanding that the lienor should hold the note until the owner could collect some money and make payment on account, when it should be surrendered; no payment having been made, and the note being produced for cancellation at the trial of the action to enforce the lien.

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

Action by the E. R. Darlington Lumber Company against Berney Harris. From a judgment for plaintiff, defendant appeals. Affirmed.

B. Greensfelder, for appellant. Geo. D. Reybolds, for respondent.

GOODE, J.

Action to enforce a lien for materials. E. P. Taylor agreed, as original contractor, to build a residence for Berney Harris in the city of Webster Groves. The lumber for the house was purchased by Taylor from the Darlington Lumber Company, but most of it was never paid for; so the lumber company filed a lien against the property, brought this action to enforce it, and obtained judgment for $645.56.

One point made against the judgment is that the evidence was insufficient to prove the different articles of lumber listed in the lien were used in the construction of the house. It was shown wagons were loaded at the respondent's yard with lumber to be taken to Harris' lot in Webster Groves, a dray ticket for every load was made, and was receipted by Taylor or one of the men who were working on the house when the load was delivered in Webster Groves. Taylor swore he was about the house a great deal, but not constantly, while it was under construction; that he knew most of the lumber itemized in the lien account was used in the work, and to the best of his knowledge and belief all of it was. It is impossible, in cases of this kind, to prove, as the appellant thinks ought to be done, that some one saw every stick of it put into the house. If such rigid proof was required, few liens could be enforced. As to the return of a little of the lumber, that was shown, and that credit was given on respondent's books for it. The evidence that the lumber went into appellant's house is definite enough to justify a lien.

We overrule the objection that the lien account describes more than an acre of ground. The premises on which the lien is prayed are definitely described, and the lot contains slightly more than an acre. This is immaterial. The lien is asked on a platted lot in an incorporated city, and not on country property. Fitzgerald v. Thomas, 61 Mo. 499; DeWitt v. Smith, 63 Mo. 266; Seibel v. Siemon, 5 Mo. App. 305; Holland v. McCarty, 24 Mo. App. 83; Miller v. Hoffman, 26 Mo. App. 199.

Another contention of the appellant is that the four months within which the lien could be filed for most of the material had expired prior to the filing of same. The basis of this contention is that all the lumber for the house as originally contracted for was delivered by the respondent between July 14 and October 25, 1902. The lien was filed April 9, 1903, and more than four months after the date of the last item furnished for building the house according to the contract and specifications. Other material which went into the construction of the building was sold and delivered December 10, 1902, and within four months of the filing of the lien; but appellant contends this material was furnished under a new and distinct contract for extra work. Just what the original contract contained, and whether it had any provision for changes in the building and extra work, we are not advised, because if that contract was introduced in evidence it was left out of the record. It appears Taylor submitted a list of the lumber and material he thought he would need for the house to the respondent before he began work, and it was estimated the cost of the lumber to be used in the house would run to $769. It did not reach that sum, however, but only $753. Taylor testified that, when the house was nearly completed, Harris wanted certain extra work done, namely, a room finished in the attic, coal bins constructed in the cellar, and some dormer windows built. Taylor made Harris a bid of $45 for those items, which was accepted, and the material furnished December 10th went into them. For this reason appellant's counsel insists the lien was only good for the...