Schulenburg v. Robison

• Decision Date: 23 April 1878
• Citation: 5 Mo.App. 561
• Parties: FREDERICK SCHULENBURG ET AL., Appellants, v. WILLIAM T. ROBISON ET AL., Respondents.
• Court: Missouri Court of Appeals

5 Mo.App. 561

FREDERICK SCHULENBURG ET AL., Appellants,

v.WILLIAM T. ROBISON ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Apr. 23, 1878.

1. Where a sub-contractor accepts from the contractor a note for the amount due for work upon a building upon which the former claims a lien, which note also includes sums due on other accounts, such a confusion of the lien-claim with other matters is a waiver of the sub-contractor's lien.

2. Where the identity of the lien-claim is gone, the specific remedy against the property cannot be enforced. The owner will not be subjected to the burden of inquiring into the state of account, between contractor and sub-contractor.

APPEAL from St. Louis Circuit Court.

Affirmed.R. SCHULENBURG, for appellants, cited: McMurray v. Taylor, 30 Mo. 263; Ashdown v. Woods, 31 Mo. 465; Muir v. Cross, 10 B. Mon. 277; Graham v. Holt, 4 B. Mon. 61; Wheeler v. Schroeder, 4 R. I. 383; Bailey v. Hull, 11 Wis. 289.

JOHN BOYLE, for respondents, cited: Waterman v. Younger, 49 Mo. 413; Gantner v. Kemper, 58 Mo. 567.

HAYDEN, J., delivered the opinion of the court.

This is a suit to enforce a mechanic's lien against the house of Culver, one of the defendants, for a balance of $593.53, for lumber furnished by the plaintiffs, as sub-contractors of Robison & Son, the contractors. One of the members of the firm of Robison & Son having died, his administrator was made a defendant. The defendant Culver, answering separately, alleged that the building was completed about Nov. 18, 1875, and that on that date he paid Robison & Son in full for the lumber; that before that time, Robison & Son had paid to the plaintiffs the amount of the bill in suit. The case was tried by the court. The evidence showed that at the time when the plaintiffs furnished this lumber, they also furnished other lumber to Robison & Son for other houses; that Robison & Son made to the plaintiffs several cash payments, and also gave notes covering their indebtedness to plaintiffs, including the amount here sued for; that from time to time the notes so given were renewed; that, late in 1875, Robison & Son gave to the plaintiffs their two notes, one for $2,374.12, and one for $1,340.90, which notes included the $593.53 in suit.

There was evidence tending to show that Culver paid the latter amount to Robison & Son, and that they, when making payments of cash to the plaintiffs, appropriated a part of the money so paid to the present claim, and that the plaintiffs received money in extinguishment of this liability. The plaintiffs' testimony tended to show that no such appropriation was either assented to or suggested.

No notes were produced at the trial, by the plaintiffs, for surrender or cancellation; but the plaintiffs proved that in presenting in the Probate Court, for allowance against the estate of J. P. Robison, the two notes above named, they gave on the note for $2,374.12 a credit for the amount of the present bill, to enforce a lien for which the suit was pending.

Upon the question involved in this case, as to the appropriation of money to the payment of the appellants' claim by the contractors, the court below apparently decided adversely to the respondents; otherwise, and if the balance was paid, the ulterior questions did not necessarily arise. If the amount was not paid, then the question arises as to the effect of the acceptance by the appellants, from the contractors, of notes which included not only the amount sued for, but other sums due from the contractors to the appellants on other accounts. The appellants were sub-contractors, and in their dealings with the contractors, instead of keeping the present demand by itself,...