E. R. Darlington Lumber Company v. Pottinger

• Decision Date: 07 May 1912
• Parties: E. R. DARLINGTON LUMBER COMPANY, Appellant v. LOUIS E. POTTINGER et al., Respondents
• Court: Missouri Court of Appeals

147 S.W. 179

165 Mo.App. 442

E. R. DARLINGTON LUMBER COMPANY, Appellant v. LOUIS E. POTTINGER et al., Respondents

Court of Appeals of Missouri, St. Louis

May 7, 1912

April 1, 1912, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Rudolph Schulenburg for appellant.

(1) The court erred in refusing to grant instruction No. 1 prayed for by plaintiff. Revised Statutes 1899, section 4213; Lumber Co. v. Roeder, 81 Mo.App. 337. (2) The court erred in refusing to grant instruction No. 2 prayed for by plaintiff. (3) The court erred in granting instruction No. 1 prayed for by defendant, Doering. Revised Statutes 1899, section 4213; Johnson v. Building Co., 23 Mo. 546; Schroeder v. Mueller, 33 Mo.App. 28; Fuller v. Hoffman, 28 Mo.App. 671; Schulenburg v. Strimple, 33 Mo.App 154; Allen v. Mining Co. 73 Mo. 688; Ittner v Hughes, 133 Mo. 679; Manufacturing Co. v Mepham, 64 Mo.App. 50; Lumber Co. v. Wright, 81 Mo.App. 535; Lumber Co. v. Roeder, 81 Mo.App. 337; Lumber Co. v. Ware, 138 S.W. 691; Stone Co. v. Central Church, 156 Mo.App. 671, 137 S.W. 1028; Uhrich v. Osborn, 106 Mo.App. 492; Kittrell v. Hopkins, 114 Mo.App. 431. (4) The court below erred in granting instruction No. 3 prayed for by defendant Doering. Mechanic's Lien Statute, sec. 4203. Lumber Co. v. Schmidt, 130 Mo.App. 227; Rand v. Grubb, 26 Mo.App. 591; Crane Co. v. Reel, 104 Mo.App. 177; Schulenburg & Boeckler v. Johnson, 38 Mo.App. 404.

Albert E. Hausman for respondents, Doering.

(1) With the weight of the evidence this court has nothing to do. R. S. 1909, sec. 2023. (2) The trial court committed no error in refusing plaintiff's instruction No. 1 refused, found at pages 13 and 14, abstract of record, for instructions not based upon the evidence should not be given. Stone Co. v. Central Church, 156 Mo.App. 671; Wise v. Railroad, 135 Mo.App. 230; State ex rel. v. Dieckman, 124 Mo.App. 653. (3) The trial court committed no error in refusing plaintiff's refused instruction No. 2, because the first paragraph of said instruction is fully covered by plaintiff's chief instruction found on pages 11 and 12, abstract of record. And the second paragraph of said instruction is erroneous. The material man who knowingly files an account which contains items which he knew did not go into the building, or who knowingly omits a credit, thereby loses his lien. Lumber Co. v. Roeder, 81 Mo.App. 337; Brick Co. v. McTaggart, 76 Mo.App. 354; Eau-Claire v. Wright, 81 Mo.App. 235; Dougherty v. Rothbaum, 156 Mo.App. 215. (4) Th court did not err in giving defendant's instruction No. 1, because if plaintiff at the time it filed the lien account knew that it contained items which had not gone into the building, then no just and true account was filed, and the lien is lost. Lumber Co. v. Roeder, 81 Mo.App. 337; Lumber Co. v. Wright, 81 Mo.App. 535; Dougherty v. Rothbaum, 156 Mo.App. 215; Stone Co. v. Central Church, 156 Mo.App. 671. (5) The court did not err in giving defendant's instruction No. 3. It is a correct exposition of the law as applied to the facts in this case. A material man must prove that he sold the material on the credit of the building or no lien attaches; and whether or not the sale was so made is a question for the jury. Crane Co. v. Neel, 104 Mo.App. 177; Manufacturing Co. v. Carroll, 72 Mo.App. 315; Fathman v. Ritter, 33 Mo.App. House v. Thompson, 36 Mo. 450. (6) The instructions must be read as a whole and when they are so read, they correctly present every phase of the evidence to the jury.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

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 eight dollars 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 one dollar, 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 seven dollars 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 sixteen dollars. 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 sixteen dollars 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 sixteen dollars 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 six per cent interest added thereto from May 19, 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." Error is assigned to the failure to give these two instructions.

The court, at the instance of defendants, gave among other instructions two, which are numbered respectively 1 and 3, the giving of which is assigned as error. Instruction No. 1 told the jury that if they found from the evidence that plaintiff, by any of its managing officers, "at the time it filed its lien account with the circuit clerk . . . knew that said lien account contained items of material and lumber which had not gone into the construction of the building . . . then your verdict must be for defendants (owners of the premises) even though you believe that said Darlington Lumber Company has offered at this trial to give credit for the items which did not go into the said building." Instruction No. 3 told the jury that there could be no recovery in this action against the owners of the premises, "unless you believe from the evidence that plaintiff . . . sold the lumber and materials here sued for upon the credit of the building being erected or about to be erected" for the owners of the premises, describing the premises. It is also assigned for error that the instructions given to the jury are so conflicting as to tend to mislead the jury.

...