Rude v. Mitchell

• Citation: 97 Mo. 365,11 S.W. 225
• Parties: RUDE et al. v. MITCHELL et al.
• Decision Date: 04 March 1889
• Court: United States State Supreme Court of Missouri

11 S.W. 225

97 Mo. 365

RUDE et al. v. MITCHELL et al.

Supreme Court of Missouri.

March 4, 1889.

CONTRACTS — MECHANICS' LIENS.

1. Defendant stipulated to pay a certain sum for the construction by plaintiff of certain buildings according to the plans of the architects, and that the architects might make alterations in the plans, and that any difference in the cost should be figured by the architects, whose figures should be final. Held, where it was found that certain alterations had been made in the plans, and extra work done, at the request of the architects, but that the architects did not fix the difference in cost occasioned thereby, that plaintiff could recover for the reasonable

value of the work, the contract price being taken as the basis of the recovery, and deductions being made for changes lessening the cost of the work.

2. Under Rev. St. Mo. § 3176, requiring a contractor, in order to be entitled to a mechanic's lien, to file a statement showing a just and true account of the demand due him after all just credits have been given, the statement must be fairly itemized, showing the materials used, the work done, and the price charged; and a statement filed by a principal contractor lumping the contract price on the one side and the credits on the other, and referring to certain plans and specifications for the work done and materials furnished, is not sufficient.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action by John Rude and others against Robert Mitchell and others. Judgment was given for plaintiffs, and defendants appeal.

W. C. Marshall, for appellants. T. A. Post, for respondents.

BLACK, J.

This is a suit by contractors to enforce a mechanic's lien. The case was tried before a referee, and to his report the defendants filed exceptions, which were overruled, and the defendants appealed. The defendants own a lot 53 by 153 feet, upon which there were two four-story brick buildings, covering the entire property. One is called the front and the other the rear building. The floors were not on a level, because of the difference in the grade at the front and rear of the lot. On the 28th November, 1882, plaintiffs and defendants made a written contract by which the plaintiffs agreed to add two stories to the front and three to the rear building, to change the floors, and to otherwise reconstruct the old buildings according to plans and specifications prepared by the architects, and for all which defendants agreed to pay them the sum of $22,287 in installments as the work progressed. The contract contains a stipulation to the effect that the architects, Barnett & Son, may make alterations in the plans and specifications, and that the difference of the cost and expense occasioned by the additions or omissions shall be reasonable and just, and shall be figured and priced by the architects, and their figures shall be final and binding. After the date of the agreement, and before the work was commenced, the parties made a supplemental contract to the effect that each of the three new stories of the rear building should be made into one room, and because of this change there should be deducted from the contract price $1,429.74, and that there should be added to it for increased thickness of walls and some other specified work $650.10. After the walls were up, floors laid, and one coat of plastering on, the plaintiffs agreed to subdivide these three large rooms according to the first plan for $1,267, using wood instead of brick for the partitions; thus making the entire contract price $22,774.36. The suit is in two counts. The first is based upon the contract, and it is alleged therein that omissions and additions were made by orders of the architects, and that they fixed the prices for such deductions and for the extra work. The second is for the reasonable value of the entire work. The referee found that omissions were made, and that extra work had been done by the plaintiff, all at the request of the architects; but that the architects did not fix the prices for these deductions and extra work, and for this reason the plaintiffs could not recover on the first cause of action. He found for the plaintiffs on the second count, and in making his estimate he took the contract price as a basis, and from that he deducted various amounts because the work was not up to the contract standard, and then added allowances for increased value of some of the work, and for the reasonable value of work not included in the contract and specifications.

1. The first contention of defendants is that there is no evidence upon which to support a finding for the reasonable value of the work; that the contract itself is no evidence of the reasonable value of the work and materials, and especially so in view of the fact that plaintiffs did not comply with the contract. The referee does not find...