Schulenburg v. Hawley

• Decision Date: 14 May 1878
• Citation: 6 Mo.App. 34
• Parties: F. SCHULENBURG ET AL., Respondents, v. F. S. HAWLEY ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 34

F. SCHULENBURG ET AL., Respondents,

v.F. S. HAWLEY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 14, 1878.

1. A mechanic's lien can be enforced by the material-man for only such materials as were actually used in the construction.

2. Declarations of the contractor, made at the time of the purchase, as to the purpose for which the materials were to be used is not evidence that the materials were used in the construction of the building; as against the owner such declarations of the contractor are mere hearsay.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

G. M. STEWART, for appellants: The material-man must show that the materials were actually used in the construction.-- Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 515; Chapin v. Paper-Works, 30 Conn. 461.

RUDOLPH SCHULENBURG, for respondents: Evidence by the plaintiffs that the materials were furnished to be used in the construction of the building makes a primâ facie case, and the statements of the contractor at the time of making the purchase are admissible for that purpose.-- Morrison v. Hancock, 40 Mo. 561; Simmons v. Carrier, 60 Mo. 581.

LEWIS, P. J., delivered the opinion of the court.

Plaintiffs sue to enforce a mechanic's lien upon premises belonging to defendant Hawley, for lumber furnished to defendant Cutter, who was the building-contractor. The proceeding was commenced before a justice of the peace, who gave judgment for the defendants. On plaintiffs' appeal to the Circuit Court, a verdict and judgment were rendered in their favor.

The account of items furnished amounted to $1,620.20. On this was a credit for $1,402 paid, which left a balance due of $218.20. The plaintiffs' testimony tended to prove that all the articles charged were furnished to defendant Cutter at the prices specified, which were reasonable and proper; that all were ordered by Cutter or his authorized foreman, for the purpose of being used as materials in the building of Hawley's house; that Cutter was at the same time building a number of other houses, for different persons; that about one-half the lumber was delivered by plaintiffs' teamsters at the Hawley building, and the other half was taken in Cutter's wagons to his workshop. As to the last-mentioned half, the only testimony introduced by plaintiffs to connect it with the Hawley building consisted of the declarations made by Cutter, or his foreman when the lumber was obtained, to the effect that it was purchased for exclusive use in that erection. At the close of plaintiffs' testimony defendants asked the court to instruct the jury, in effect, that the plaintiffs had failed to prove that all the lumber charged for had been used on Hawley's house, and that their lien could not be established as demanded. This the court refused.

For the defence, both Cutter and his foreman testified that of all the lumber charged for in the account, that which actually went into the Hawley house amounted to only $1,091.27; that of the residue some was put into other buildings, and a considerable quantity yet remained in Cutter's shop; that the plaintiffs had already been paid more, by the sum of $308.17, than the prices charged for all the lumber that was actually used in the Hawley building.

The court, by its instructions, informed the jury that in order to a finding for the plaintiffs they must believe from the evidence that the lumber charged for was used in the building of Hawley's house, and that the same, so used, or part thereof, remained unpaid for. An instruction to the effect that if Cutter, in ordering the lumber, stated that it was to be used in the Hawley house, and if plaintiffs delivered the lumber in conformity with such orders and statements, then the jury might infer therefrom the use of the lumber in accordance with such statements, was refused.

From this it appears that the court properly entertained the theory that a lien could be enforced for only such materials as were actually used in the construction. As $1,402 had been paid on the account, it was obviously necessary to the plaintiffs' case that materials to an amount exceeding that sum had been so used. But was there sufficient testimony, or any testimony whatever, upon which the jury might be authorized to come to that conclusion? If not, the court erred in instructing upon a hypothesis of fact which was without evidence to support it.

Plaintiffs rely upon the expressed purposes of the conctor when purchasing the lumber, as sufficient for a primâ facie case. We are referred to expressions of our Supreme Court in Simmons v. Carrier, 60 Mo. 581, commenting on Morrison v. Hancock, ...