E. R. Darlington Lumber Co. v. Pottinger

• Citation: 147 S.W. 179
• Parties: E. R. DARLINGTON LUMBER CO. v. POTTINGER et al.
• Decision Date: 07 May 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 179

E. R. DARLINGTON LUMBER CO. v. POTTINGER et al.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. MECHANICS' LIENS (§ 289)—PROCEEDINGS TO ESTABLISH—INSTRUCTIONS.

Among the items included in a materialman's lien account were window frames and blinds, alleged to have been delivered to the contractor pursuant to the plans, and the material was actually set into the walls, but afterwards taken out by the direction of the owners, and the materialman's testimony tended to show that it did not know that it, as well as some doors delivered, were not used when the lien account was filed; defendant's testimony being to the contrary. In a suit to establish a lien for material, the materialman requested an instruction that an inadvertent or unintentional misstatement of some of the items in the lien account as having been used in the building would not vitiate the whole account, so as to prevent him from obtaining a lien for the items correctly stated. Rev. St. 1909, § 8223, entitled a materialman to a lien, though he may have "unintentionally failed to enter in his account filed the full amount of credits to which the debtor may be entitled." Held, that it was error to refuse the requested instruction; the statutory word "unintentional" meaning without fraudulent purpose to withhold a credit to which a debtor was entitled, and not an omission of a credit when, in law, the right thereto may be doubtful.

2. TRIAL (§ 219) — INSTRUCTIONS — DEFINITIONS.

Whenever Rev. St. 1909, § 8223, entitling a materialman to a judgment establishing a lien, though he may have "unintentionally failed to enter in his account filed the full amount of credits to which the debtor may be entitled," is applicable to the facts, it is better for the court to instruct as to the meaning of "unintentional," as used therein.

3. MECHANICS' LIENS (§ 148)—MATERIALS —STATUTE—CREDITS.

In view of Rev. St. 1909, § 8217, requiring a lien claimant for materials furnished to file a just and true account of the demand due after all just credits have been given, a materialman is bound by voluntary credit given by him for certain items of material, and cannot obtain a lien therefor, though they were lienable.

4. MECHANICS' LIENS (§ 48)—MATERIALMAN —CHANGE OF PLAN—EFFECT ON LIEN.

A materialman was entitled to a lien for materials furnished the contractor for use in the building and afterwards taken out because of a change of plans, consented to by the owners, if they were not fraudulently included within the lien account.

5. MECHANICS' LIENS (§ 55)—FOUNDATION OF LIEN—STATUTE.

Under Rev. St. 1909, § 8212, giving every person furnishing material for any building, under a contract with the owner, a lien upon the building or improvements and upon the land belonging to the owner, to secure the payment for such materials, it is not the building to which the credit is given, but the owner or contractor; it being the contract with the owner or contractor which gives a materialman the right to a lien.

6. COURTS (§ 91)—RULES OF DECISION.

The Court of Appeals is bound by the decision of the Supreme Court rather than by a prior decision of the Court of Appeals.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the E. R. Darlington Lumber Company against Louis E. Pottinger and others. From a judgment in part for plaintiff, it appeals. Reversed and remanded.

Rudolph Schulenburg, of St. Louis, for appellant. Albert E. Hausman, of St. Louis, for respondents.

REYNOLDS, P. J.

This is an action by the materialman to recover a claim for $297.35 for material furnished the contractor who erected a building on a lot in the city of St. Louis, the material to be used in that building, and to have that claim declared a lien on the premises owned by or in which the defendants, other than Pottinger, the contractor, have an interest. The jury returned a verdict in favor of plaintiff against the contractor for the debt but denied the lien. After an unsuccessful motion for a new trial and judgment following the verdict, plaintiff has duly perfected its appeal to this court.

It appears that this was the second trial of the cause, the verdict in the first having been set aside on the grounds, among others assigned, that the verdict of the jury in finding against the lien was against the evidence, the weight of the evidence, against the law and against the instructions of the court. At this second trial the lien account in evidence sets out the material claimed to have been furnished and which went into the building with minute particularity as to dates, items, prices and values. Among other items included are two window frames and windows and blinds appertaining thereto, valued at $8, and alleged to have been delivered by plaintiff to the contractor at the building, the original plans and specifications of the building calling for them. The window frames and blinds were actually set into the walls but afterwards taken out by the direction of the owners who wanted the brick openings closed.

The testimony for plaintiff tended to show that when it filed the lien account, it did not know that these window frames and blinds had not been used. Testimony of the defendants was to the contrary. Another of these blinds said to be worth $1, although delivered, was not used because if hung it would have projected over an adjoining lot. That it was not used was not known to plaintiff until that fact was developed at the trial. Seventeen doors were charged for and delivered at the building. Three of the value of $7, although called for in the plans and contract, were not used and that fact was not known to plaintiff until it developed at the trial. The total value of these windows, doors and the blind was $16. It was also contended at the trial that a cedar post charged for was not used and that four joists furnished were smaller than those charged for, and that a corresponding reduction in price should have been made. The evidence as to these last two items was conflicting.

At the close of the testimony plaintiff gave a credit of $16 for the three items first above mentioned.

The errors assigned before us are to the giving and refusal of instructions. Plaintiff asked an instruction, numbered 1, to the effect that an inadvertent or unintentional misstatement of some of the items in the lien account as having been used in the building does not vitiate the whole account nor prevent the obtaining of a lien for the items which are correctly stated and which have been used in the building. This was refused. The court also refused instruction numbered 2, asked by plaintiff, which is to the effect, that plaintiff, at the trial, having given credit for $16 for the items above referred to, the court instructs the jury that if under the other instructions the jury returns a verdict sustaining the mechanic's lien against the property, that verdict must not exceed the sum of $281.35 with 6 per cent. interest added thereto from May 19th, 1909, to the date of the trial. Following this and as part of the same instruction, and also refused, the court was asked to instruct the jury that if they found "from the evidence that said frames, windows and shutters were called for by the original plans for said building and were actually furnished and delivered by plaintiff to defendant Pottinger for and at said building, that the frames were put and placed in said building according to the original plans thereof, that said frames were, thereupon, and without the knowledge of plaintiff, removed and the same and said windows and shutters were not used in the construction of said building by reason of change of plans caused by defendants, * * * then the court declares the law to be, that the omission or failure on the part of plaintiff to give credit or not to make a charge for said frames, windows and shutters on its lien account and statement * * * does not vitiate the lien account nor prevent the obtention of a lien for those items of lumber and materials, which the jury may find to have been used in the construction of said building, although the jury may also find that defendant Doering (the owner of the premises) told plaintiff before the filing of said lien account, that said frames, windows and shutters had not been used in said building."...