E. R. Darlington Lumber Co. v. James T. Smith Bldg. Co.

• Decision Date: 01 December 1908
• Citation: 114 S.W. 77,134 Mo.App. 316
• Parties: E. R. DARLINGTON LUMBER COMPANY, Appellant, v. JAMES T. SMITH BUILDING COMPANY et al., Respondents
• Court: Missouri Court of Appeals

114 S.W. 77

134 Mo.App. 316

E. R. DARLINGTON LUMBER COMPANY, Appellant, v. JAMES T. SMITH BUILDING COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

December 1, 1908

Appeal from St. Louis City Circuit Court.--Hon. Chas. Claflin Allen Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Reynolds & Reynolds for appellant.

Stephen C. Rogers, by McKark, for respondents.

NORTONI J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

In this action, plaintiff seeks a personal judgment against the defendant building company and the enforcement of a mechanic's lien against the buildings now owned by the other defendants. At the conclusion of the evidence on behalf of the plaintiff, the circuit court peremptorily directed a verdict to the effect that the lien could not be enforced against the property. Plaintiff recovered a personal judgment against the Smith Building Company for the amount sued for and appealed from the ruling of the court with respect to the lien sought to be enforced against the buildings owned by the other defendants. Plaintiff furnished materials for the buildings and the important question in the case relates to the continuity of the lien account.

The first item of account is of date January 18, 1904. It appears from the account that materials were furnished every few days until December 9, 1904, and no materials were furnished thereafter during the interim of nearly six months, or until June 6, 1905. Our statute, sec. 4203, R. S. 1899, sec. 4203 Mo. Ann. St. 1906, gives a lien to the materialman for materials furnished under contract with the owner of the building. A party furnishing the material for a building is an original contractor within the purview of section 4207, R. S. 1899, sec. 4207, Mo. Ann. St. 1906. A limitation is prescribed by that section, however, to the effect that he shall file his lien account as therein indicated within six months after the indebtedness "shall have accrued." The indebtedness is said to have accrued in lien cases when it becomes completed by the materialman furnishing the last material for the building under his contract. [Bolen Coal Co. v. Ryan, 48 Mo.App. 512.]

The lien in this instance was filed September 6, 1905, and within six months from the date of furnishing the last item of material, in amount, $ 1.70, on June 6, 1906. If, however, the continuity of the account under the original contract, ceased with the item of December 9, 1904, then the lien was filed out of time and the court properly directed a verdict to the effect that it could not be enforced. To have justified the court in directing a verdict for the defendant, there must appear no substantial evidence tending to prove continuity of the account after December 9, 1904; or in other words, there must appear no substantial evidence tending to prove that the item of June 6, 1905, was intended by the parties as parcel of the continuing account for materials furnished under the original contract. [Routsong v. Railway, 45 Mo. 236; Moody v. Deutsch, 85 Mo. 237, 243.] From what has been said, it appears the question for decision is whether the evidence wholly fails to show continuity of the account after December 9, 1904, and conclusively establishes that the lumber furnished on June 6, 1905, was not contemplated by the parties as an item of the continuing account and is therefore extraneous of or not within the original contract.

The evidence on the part of plaintiff tended to prove that the defendant Smith Building Company owned a single lot of ground fronting fifty feet on Shenandoah avenue in the city of St. Louis. Desiring to construct two buildings containing two flats each thereon, Mr. Smith, president of the company, called upon the manager of the plaintiff, Darlington Lumber Company, for prices upon lumber to be used in the construction thereof. They discussed the matter of the buildings and the character of lumber to be used therein. Mr. Smith submitted a written list containing a portion of the materials to be used. The manager of plaintiff company agreed to furnish all on the list, and such other materials to be used in the two buildings and not on the list, as might be required, at an agreed price per foot or per hundred feet. The proposition was accepted by Mr. Smith and on January 18, 1904, the first material was furnished under this agreement. As stated before, the materials were furnished every few days until December 9, 1904. It appears that all of the materials furnished were used by the Smith Building Company in the construction of the two buildings, Nos. 4227 and 4229 Shenandoah avenue, on which, together with the single lot of ground, the lien is sought to be enforced. For each load of lumber delivered at the buildings, a receipt in the form of a dray ticket was executed by Mr. Smith or some one for him having authority so to do, and these receipts, more than forty in number, were returned to the plaintiffs. A number of these receipts are indorsed across the face of each, "on contract." Nine of them, however, are indorsed "extra;" of these nine dray tickets or receipts for lumber, the one amounting to $ 1.70, of date June 6, 1905, has indorsed on its face, "extra." It appears that the buildings were practically completed in December, 1904. Besides the shelving in a closet in one of the buildings called for in the plans and specifications, there remained to be constructed the granitoid walks thereabout; also certain anchor rods to tie the brick walls of the buildings had not yet been put in. About this time, Mr. Smith, president of the defendant building company, gave the manager of the plaintiff lumber company, and order on Mr. Parker for a considerable amount of money to be applied on account. A payment on account had been made in May theretofore. It does not appear that the order given in December, covered the entire amount then accrued. Mr. Parker declined to pay the order, however, and the amount was not collected. It seems that the west building, No. 4229, was rented to a tenant about this time, and a few months thereafter, sold to one of the defendants in the present action. Both the manager of plaintiff company and Mr. Smith of the building company gave evidence to the effect that the buildings were not then completed. They say...