Rand v. Grubbs

• Decision Date: 31 May 1887
• Citation: Rand v. Grubbs, 26 Mo.App. 591 (Mo. App. 1887)
• Parties: H. T. RAND, Respondent, v. H. B. GRUBBS ET AL.; JOHN WALL, Appellant.
• Writing for the Court: ROMBAUER, J.
• Court: Missouri Court of Appeals

26 Mo.App. 591

H. T. RAND, Respondent, v. H. B. GRUBBS ET AL.; JOHN WALL, Appellant.

Court of Appeals of Missouri, St. Louis.

May 31, 1887

APPEAL from the Greene County Circuit Court, JAMES R. VAUGHAN Judge.

Reversed in part.

BOYD & DELANEY, for the appellant: Wall should not have been compelled to investigate and unravel the account of Rand with other buildings. Schulenburg v. Robinson, 5 Mo.App 597; Schulenburg v. Vrooman, 7 Mo.App. 133. There was evidence tending to show a sale to Grubbs & Company on their personal credit, and instructions numbered one and two should have been given. Henry v. Rice, 18 Mo.App. 497; Livermore v. Wright, 33 Mo. 31; Phillips on Mech. Liens., sects. 122, 123. If an order was given by Rand, in substance, as pleaded by Wall, then it operated as a complete waiver and release, and refused instructions numbered four and five should have been given. Phillips on Mech. Liens, sect. 273; Gorman v Sogner, 22 Mo. 137.

J. T. WHITE, A. W. LINCOLN, and C. W. THRASHER, for the respondent: An amended answer constitutes the only answer, and must contain all matters of defence. Rev. Stat., sects. 3545, 3776; Woolfolk v. Woolfolk, 33 Mo. 110; Tichenor v. Voorhis, 46 Mo. 110. The points made in the brief of the appellant are entirely immaterial and have no application to the issues in this case between the appellant and the respondent. And the instructions asked upon those points by the appellant were properly refused by the court. Hassett v. Rust, 64 Mo. 325; Budd v. Hoffheimer, 52 Mo. 297; Longuemore v. Busby, 56 Mo. 540; The State v. Miller, 67 Mo. 604; The State v. Little, 67 Mo. 624; Quinlivan v. English, 44 Mo. 46. Only such issues as are made by the pleadings should be submitted to the jury by instructions. Fulkerson v. Thornton, 68 Mo. 468; Kenney v. Railroad, 70 Mo. 252; Nugent v. Curran, 77 Mo. 323. The fourth instruction asked by the appellant, concerning the waiver of the lien, submits to the jury a question of law as to the legal effect of a written instrument, and was properly refused by the court. Fugate v. Carter, 6 Mo. 267; Newman v. Lawless, 7 Mo. 279; Hickey v. Ryan, 15 Mo. 62; Crawley v. Mullins, 48 Mo. 517; Jordan v. The City of Hannibal, 87 Mo. 673; Morgan v. Durfee, 69 Mo. 469; Railroad v. Cleary, 77 Mo. 634; Turner v. Railroad, 76 Mo. 261

OPINION

ROMBAUER J.

This is an action of mechanic's lien by a material man against the contractors and the owner. Upon a trial of the cause before a jury there was a judgment for the plaintiff against the contractors and the property for two hundred and fifty-six dollars, from which the owner appeals.

The debt and lien was claimed, according to the plaintiff's petition, on account of the sale and delivery by him of two hundred thousand soft brick at seven dollars per thousand, and seventy-five thousand hard brick, at $7.50 per thousand, which brick, he claimed, entered into the construction of the building. There was evidence of a contract price at that rate, and, also, evidence that this was the reasonable value of the brick at the time of delivery. It appeared by the plaintiff's own evidence that he sold to the contractors, in October, 1884, two kilns containing six hundred thousand brick, and that both the plaintiff and the contractors treated the sale as of that date; an account rendered by the plaintiff, starting with a debit to the contractors for $4,400, as of October 24, 1884.

It is not claimed by the plaintiff that the brick was sold to be used exclusively in the building sought to be charged. On the contrary, it conclusively appears, by his own testimony, that it was bought by the contractors to be used in this and a number of other buildings. It does not even appear, except inferentially, that the contractors, at the date of the sale of this brick, had a contract for the erection of the building sought to be charged. It is not pretended that any separate account was kept by the plaintiff of the brick that went into the construction of this building. The brick were delivered to the contractors' teamsters, from time to time, and hauled by them to this and a number of other buildings in process of erection by the said contractors, and the plaintiff, on his books, gave credit to the contractors for payments made by them, or upon their order, by the various owners of the different buildings, on general account. The plaintiff's account now sued on, is claimed to be made up by estimating the brick that went into buildings owned by other parties, applying the payments, received by him on general account, to the payment of such brick, and the discharge of such other buildings, and holding the contractors and this building for the residue.

Conceding that the facts of this case, under the pleadings, as ultimately framed, sufficiently distinguish it in principle from the case of Schulenburg v. Robison (5 Mo.App. 564), and Schulenburg v. Vrooman (7 Mo.App. 133), where the general rule was laid down that " the lien claimant is presumed to keep his lien in mind, and if he is to seek its enforcement, the law requires him to preserve its unity as a claim against particular property," and still there are insuperable objections to upholding this lien upon the state of the pleadings, upon the undisputed facts, and upon the special findings and general verdict of the jury itself.

The plaintiff, in his petition, as above seen, claimed that he furnished, altogether, two hundred and seventy-five thousand brick, which entered into the construction of this building, and specifically stated that two hundred thousand of these brick were worth only seven dollars per thousand. He claimed a balance due him of $792.43, admitting that the residue was paid.

The defendant owner filed the following amended answer:

" Now comes said Wall, and, for his plea, says that he denies that the amount of brick charged by the plaintiff went into and was used in said building; and, for another defence, says that said Rand ought not to maintain his lien, because, on or about the _____ day of ____, and while said building was in process of construction, and before said Wall had settled with said Grubbs, said Rand made, executed, and delivered, to one Mr. Foley, agent of said Wall, an instrument, in tenor following:

‘ Mr. Foley:

Dear Sir: If Mr. Grubbs wants five hundred dollars, please pay him, and I will get my money that is due from other sources.

H. T. RAND.'

That said instrument is lost, as the defendant now avers as a reason for not producing the same here in court; that,...