Sechrist v. Hufty Rock Asphalt Co.
| Decision Date | 05 September 1933 |
| Docket Number | 5312 |
| Citation | 63 S.W.2d 193 |
| Parties | SECHRIST et al. v. HUFTY ROCK ASPHALT CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Barton County; C. A. Hendricks, Judge.
“ Not to be published in State Reports.”
Action by J. F. Sechrist and others, partners doing business under the name and style of Sechrist & Sons, against the Hufty Rock Asphalt Company and others, dismissed as to M. F. Hufty. Judgment for plaintiffs, and defendants appeal.
Affirmed in part, reversed in part, and remanded, with directions.
See also, 59 S.W.2d 767.
George L. Davis, of Kansas City, for appellants.
H. W Timmonds, of Lamar, for respondents.
This is an action to enforce a materialmen’s lien against the defendants. The cause was dismissed as to M. F. Hufty. There is no controversy here over the pleadings. A trial was had before the court, without a jury, and the court entered judgment for the plaintiff for the sum of $157.55 and sustained the claim for lien against the property described in the plaintiff’s petition.
Motion for new trial and in arrest of judgment were filed in due time, both were overruled, and the defendants appealed to this court.
The case is submitted to us under several assignments of error. We shall set out such of the facts as we deem necessary for a determination of this case, as we consider the various assignments. The first and third assignments considered under points and authorities are that the judgment of the trial court should have been for the defendants for the reason that the lien claim filed was not a true and correct account, and that the lien was not filed within six months after the alleged account became due and payable.
The petition in this case alleged and prayed for a judgment of $239.78, and sought the establishment of a lien upon the property described. The defendant contends that a just and true account of the demand was not filed as required by section 3161 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. § 3161). There appears to be merit in this contention. It should be remembered that this account as originally filed was for $239.78, and that the petition prayed judgment and a lien for that amount. The first item of this account is dated October 25, 1930, and it shows various items charged and different dates down to October 13, 1931. There were two other items charged, one April 30, 1932, a check valve for 85 cents and one on May 18, 1932, union & bushing, 80 cents. The total of these items as shown by the statement was $208.83. Attached to the bottom of this itemized statement and filed as a part of the claim was a written order dated June 26, 1931, in words and figures as follows:
Gentlemen: Please pay to the order of Sechrist & Sons, the sum of $30.85 and charge out of funds due me for wages.
Gentlemen: We accept the above assignment and agree to pay the sum of $30.85 as requested by Mr. Knox.
It is shown that the amount of this order helped to swell the amount of the filed account to $239.78. The account consisted of something like 270 items, which we shall not set out here, but the items ranged in price from 4 cents up; the great majority of the items being less than 50 cents each. The above-quoted order was included in the statement, and again about the middle of the statement is found this item: "June 27, transfer from Knox acct. for wages as per signed agreement, $30.85."
This shows that this one item was included twice within the statement filed, and for which the petition prayed judgment. The plaintiff admitted that this item should not have been included in the statement for a lien. There was no denial in the evidence that the plaintiff was entitled to pay for the whole amount claimed, less, of course, the doubling up of the item of $30.85. The lien claim for materials furnished could not under any circumstances have been for more than $178.08; yet the court found for only $157.55. There is a reason suggested in the defendants’ brief for this discrepancy. The first 47 items in this account, charged down to and including November 20, 1930, amount to a total of $20.53. If this total of $20.53 be taken from the total account of $178.08, it would leave $157.55, the amount of the court’s judgment. This is apparently what was done. It is also apparent that the court was not charging the corporation, Hufty Rock Asphalt Company, with this part of the claim, for the uncontroverted testimony is that the company was not incorporated until November 22, 1930. There can be no other explanation for leaving out the 47 items of the account aggregating $20.53, except that the corporation was not liable for bills made before its incorporation. Without attempting here to pass on the liability of the corporation for these items, we are mentioning it to show that the court’s judgment indicates that a just and true account was not filed as provided by law in seeking to establish a lien. We have here in this itemized account seeking a lien one item of $30.85 included twice in the account, when it should not have been included at all, and we have 47 items set out aggregating $20.53, which were sold before the defendant corporation ever came into existence, without a particle of evidence tending to show that the corporation, ever in any way assumed liability therefor. It shows to us that the statute requiring a true and just account to be filed was not complied with as required.
Then, too, there are other items in this account, which raise a question of doubt as to whether these items were furnished as "material, fixtures, engine, boiler, or machinery for any building, erection or improvements upon land, or for repairing the same," as provided in section 3156, R. S. Mo. 1929 (Mo. St. Ann. § 3156). There were several items of this account, such as "brooms" "axe handles," "picks," and "pick handles," etc., which from their nature indicate they were nonlienable articles, and there was no proof that these articles were for the "buildings or improvements upon the land."
The lien claim in this case shows that it was filed against individuals and a corporation without any showing of the joint liability. The account filed and the uncontradicted evidence shows that a part of the account was made before the incorporation was in existence. The account includes items admitted to be improperly included, and includes items charged no proof of which was offered showing they were used in the construction of the building or on the land.
We hold the statement of account was not within the statute sufficient to constitute or have established a lien in this case. We think our courts sustain us in this conclusion. See Gill v. Harris et al., 224 Mo.App. at page 724, 24 S.W.2d 673, 677, where this language is used:
"Further neither respondent nor any...
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