Schulenburg v. Werner

• Decision Date: 03 December 1878
• Citation: 6 Mo.App. 292
• Parties: FREDERICK SCHULENBURG ET AL., Defendants in Error, v. VALENTINE WERNER ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

6 Mo.App. 292

FREDERICK SCHULENBURG ET AL., Defendants in Error,

v.VALENTINE WERNER ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Dec. 3, 1878.

1. Where the account filed as a mechanic's lien is otherwise specific and definite, the use of ordinary book-keeping abbreviations will not render it insufficient.

2. Where notice of a lien-claim is admitted to have been “served upon A., who at the time was the attorney of B. (the owner) for the purpose of attending to the liens upon the house in question,” the service is sufficient. The words used express an agency.

3. Where the petition charges that the materials were used in a “two-story house,” and evidence is introduced, without objection, that some items were for a shed and fence, the objection that no authority was shown in the contractor to order materials for the shed and fence cannot be taken by an instruction in the nature of a demurrer to the evidence. The contract having been admitted by the answer, the failure to object was a virtual admission that the contract covered the case.

4. The statutory provision that no delay shall be granted at the second term for the purpose of bringing in defendants not served, does not apply to mechanic's-lien cases, where a dismissal would be a bar to a recovery on the lien.

5. In an action on a mechanic's lien a personal judgment inadvertently rendered against the contractor, who was served by publication, will be corrected in the appellate court, where the error was not called to the attention of the trial court.

ERROR to St. Louis Circuit Court.

Judgment for defendants in error.

GOTTSCHALK, for plaintiffs in error: The account is insufficient.-- Lowis v. Cutter, ante, p. 54. No delay can be granted for the purpose of bringing in other defendants not served.--Wag. Stats. 1007, sects. 4, 5; p. 1010, sects. 19, 20; Ashburn v. Ayres, 28 Mo. 75. The service of the notice was insufficient.--Wag. Stats. 911, sect. 19; Brown v. Brown, 2 Sneed, 431; Masterson v. Le Claire, 4 Minn. 163.

RUDOLPH SCHULENBURG, for defendants in error: The notice given was sufficient.-- Hassett v. Rush, 64 Mo. 327; Jarman v. Humphrey, 36 Md. 361. The fence in question is subject to a mechanic's lien, as being an “erection” or “improvement” under our statute.-- Bailey v. Hull, 11 Wis. 289; Getchell v. Allen, 34 Iowa, 561; Lacrosse v. Vanderpool, 11 Wis. 122.

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

This is a suit to enforce a mechanic's lien for lumber furnished at the request of the defendant Werner, who was served by publication. The other defendant, Jones, the owner, answered, and admitted that he had a written contract with Werner for the construction of the house, but denied the other allegations of the petition. There was judgment for plaintiffs.

It was objected upon the trial that the account filed with the petition is insufficient in its description of the articles. Some of the items describe lumber, e.g., “cedar,” “oak.” In others, there are abbreviations for white pine and yellow pine. In other items, so many pieces are stated, e.g., “Oct. 29, 60 pcs. 18--2/10.” With the exception that in certain items it is not expressly stated what these “pieces” refer to, the account appears to be specific and definite, the items being otherwise stated at length. We think that, taking the whole account together, it would require an effort at mental obtuseness not to see that the items refer to lumber, and that the descriptions are of that article of merchandise. In Lowis v. Cutter, ante, p. 54, the so-called account referred to another paper for items, and contained no details of work done or materials furnished.

It is objected that the notice of the lien-claim was not served on the owner or his agent. The law requires that notice shall be given “to the owner, owners, or agents, or either of them.” Wag. Stats. 911, sect. 19. Here it was admitted that the notice was served “upon Nelson G. Edwards, who at that time was the attorney of L. F. Jones for the purpose of attending to the lien upon the house in question.” This admission, we think, is broad enough to cover the case by fair inference. It is not said that Mr. Edwards was an attorney-at-law, nor is this implied, for no suit is referred to, but the words indicate the matter of the liens themselves. An agency, in fact, seems to be expressed by these words; and as the statute directs that the notice shall be served on the owner or agent, and the matter of the agency is the matter here involved, we think this service was sufficient.

The defendant demurred to plaintiffs' evidence, and now contends that the demurrer should have been sustained. It is said that the original contract between Jones and Werner was not produced, and that therefore it did not appear that there was any authority in Werner to order labor except for the house; that the petition charges all the items to have been used in a “two-story brick house,” and the evidence showed that some items were for the shed and fence. But this objection could not be taken by an instruction in the nature of a demurrer to evidence. This point now made affects only the plaintiffs' right to recover for particular items; an objection should have been made to the testimony, or on the ground of variance between pleading and evidence. As it was, the testimony was admitted without objection, and nothing was said as to the absence of the written contract. It appeared that all the items were for the house itself, the shed, or the fence; and no discrimination was made or insisted on upon the trial. The contract itself having been admitted by the answer, the failure to object was a virtual admission that the contract covered the case.

There is nothing in the petition, nor was there in the evidence, to show that the land on which the lien was claimed is not one parcel or lot of land. The petition speaks of it as a lot or body of land by itself; and the mere fact that it is composed of what may have been once two lots, or one lot and a part of another lot, amounts to nothing.

The defendant alleges, in his answer, that before he had any information that the plaintiffs had a lien-claim, he had paid to subcontractors, laborers, and material-men, for labor and materials furnished for this building and...