Schroeder v. Mueller

• Decision Date: 27 November 1888
• Parties: H. SCHROEDER et al., Respondents, v. FREDERICK MUELLER, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 28

H. SCHROEDER et al., Respondents, v. FREDERICK MUELLER, Appellant.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

Christian & Wind, for the appellant.

The trial court had no jurisdiction. The plaintiffs failed to allege that before instituting the suit they filed a notice in the office of the clerk of the circuit court, stating the time when, and the justice before whom, they would institute the suit. Ewing v. Donnelly, 20 Mo.App. 6. The lien statement was improperly admitted in evidence, because it was not such as required by law in this, that it pretended to claim a lien upon two distinct lots, and the houses thereon without showing whether they were built together or separate or whether each occupied a separate lot, or each occupied a part of the two lots. It is inconsistent with the notice of demand served on Mueller in this, that in the demand notice, Conrad Kaiser is charged with being the contractor for the erection of the houses, and in the lien statement he is charged as being a sub-contractor. It does not comply with the statute, as it omits to state that the account filed is a just and true account, after all just credits have been given. The instruction in the nature of a demurrer should have been given, if for no other reason, because it was perfectly clear from the undisputed testimony of plaintiff and his witness, Kaiser, that he had knowingly included in his account, filed for a lien, a demand for ten bushels of lime, which he knew, both from his own personal inspection, as well as the statement of his debtor, that it did not enter into the construction of the building, but went to waste, and included a bill for the article sold to replace the lost lime. Gauss v. Hussman, 22 Mo.App. 115; Henry v. Mahone, 23 Mo.App. 83; Miller v. Hoffman, 26 Mo.App. 199. It was error to exclude testimony tending to show that Mueller had paid to artisans, materialmen and sub-contractors, an amount in excess of his contract with Meisch. Garnett v. Berry, 3 Mo.App. 197; Henry v. Rice, 18 Mo.App. 497. The instruction prayed for by the defendant (if it was proper to submit the question to the jury at all) presented the proper issue, to-wit, that if plaintiffs filed an account with their lien claim, which they knew at the time of so filing included items which did not enter into the construction of the building, they should find for defendant; but the instructions given by the court contained the error of requiring the jury to further find that this " was not the result of an honest mistake, but intentional," in other words must have been done with intent to defraud Mueller.

Frank Hicks, for the respondents.

The statement filed before the justice expressly avers the filing on the twenty-third day of June, 1887, of the notice of the place and time of bringing such suit. The suit was brought June 24, 1887, the day named in such notice. It would seem unnecessary to aver that the twenty-third day of June transpired prior to the twenty-fourth day of the same month. It does not appear that such notice was filed before the lien claim. The fact that it was filed with or at the time of the filing of the lien claim or on the same day is immaterial. The language of the lien claim bears no such construction as contended for by appellant in the first branch of his second point. The plain, ordinary and logical meaning of the clause describing the two buildings, their location, is that the two houses were separate and on contiguous lots. Section 3190, Revised Statutes, fixes the requisites of the notice to be given to the owner before filing lien. The notice here strictly complies therewith. The statute (sec. 3176) does not require in the lien statement an express averment that all just credits have been given. The statute provides that a just and true account of the demand after all just credits have been given shall be filed. But it does not require that the lienor shall expressly state that he has done so. As to the inclusion in the bill of the eight and two bushels supplied in consequence of the breaking of a mortar-box, respondents urge that the inclusion of such items, does not vitiate the lien as to the remaining items under the authority of Pullis v. Hoffman, 28 Mo.App. 666, 671; Johnson v. Building Co., 23 Mo.App. 549; Allen v. Mining Co., 73 Mo. 688, 692. The objectionable items are distinct and separable from the remaining items, and were so separated and excluded by the jury in their verdict. It is not necessary to here discuss the question, considered by the Kansas City court of appeals in the case of Henry v. Rice, 18 Mo.App. 497, cited by appellant in his fifth point. Appellant in his offer of proof wholly fails to bring his case within the doctrine of Henry v. Rice. The offer nowhere proposes to show that the payments alleged to have been made by Mueller were in good faith, nor does it show that they were made without knowledge of the demand here in question.

OPINION

ROMBAUER P. J.

Plaintiffs, under a contract with one Kaiser, furnished certain materials for plastering two houses standing on contiguous lots, and upon their account, remaining unpaid, filed a lien claim against the property, which they prosecuted to judgment, first before a justice where the suit was instituted, and afterwards in the circuit court, to which the owner of the property had taken an appeal. ...