Schulenburg v. Vrooman

• Decision Date: 22 April 1879
• Citation: 7 Mo.App. 133
• Parties: FREDERICK SCHULENBURG ET AL., Respondents, v. JACOB A. VROOMAN ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 133

FREDERICK SCHULENBURG ET AL., Respondents,

v.JACOB A. VROOMAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 22, 1879.

1. A material-man who has furnished materials for building four houses cannot, upon the payment to him of one-half of his demand, release two of the houses and maintain a lien against the remaining two, founded on an account made up by taking one-half of each of the items composing the original account.

2. Where all the items of an account, except the few last, were supplied under one contract, and that contract was executed and the transaction closed, the time for filing a lien cannot be extended by furnishing, on a new request, additional articles, and adding them to the completed account.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

P. WILLIAM PROVENCHERE, for appellants: The account filed was not a true account.-- McWilliams v. Allen, 45 Mo. 474.

RUDOLPH SCHULENBURG, for the respondents: The question as to whether the materials actually went into the building is one of fact, and will not be reviewed in an appellate court.-- Davis v. Farr, 13 Pa. St. 167.

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

This is a suit brought to recover a personal judgment against Vrooman, at whose request and under a contract with whom the plaintiffs furnished certain lumber, and to charge with a mechanic's lien two dwelling-houses in a row of four. The defence below was made by the testator of the present appellant, F. Provenchere having purchased the property in ignorance, as he asserts, of this lien-claim, and having at his request been made a defendant. In 1875, Vrooman being then, as for the purposes of the case may here be conceded, the owner of the land on which these two houses, and with them two other houses, the four to form a solid row, were about to be built, applied to the plaintiffs, and an agreement was made by which the plaintiffs engaged to furnish lumber in such quantity as might be needed for the houses Vrooman was then building. Under this agreement lumber was furnished for the building, thus consisting of a row of houses, to the amount of $2,213.66. The houses were built with a solid, continuous front wall; were all built upon the same plan, and were of the same dimensions. Owing to a peculiarity of construction, the outer houses needed a little more lumber--how much more does not appear--than the centre houses. In April, 1876, the houses were completed. Vrooman paid to the plaintiffs about one-half of the whole amount due upon the account for lumber furnished for the row, and the plaintiffs released their lien upon the two eastern houses. In October, 1876, the lien-claim here sued on was filed. No lots of land are named other than the lot or parcel of land upon which these two western houses are, the description evidently being drawn with a view of covering the land occupied by the two houses. The account which forms the basis of the lien-claim is made up of items arrived at by taking one-half part of all the items composing the account of lumber as contracted for and furnished. In other words, the plaintiffs, having been paid half of their demand and having released two of the houses, filed one-half of their lien-claim thus split in two against the remaining houses, as a new account complete in itself. Some few items were added for lumber furnished exclusively to the western houses after the others had been released.

The lien account as filed is credited with a little over $600, this amount representing a note made by Vrooman and secured by a second deed of trust on the most western house, and it is for the balance, $490.80, that the present lien is claimed against the two most western houses of the row. The plaintiffs had judgment below as prayed for.

It seems to be the theory of the plaintiffs that they can maintain a lien upon any particular part of this building, for which they furnished lumber as a whole, if they can show the proportionate amount of lumber which went into that particular part. If it could be admitted that the lien law pays no regard to the individuality of...