Simmons v. Carrier

• Decision Date: 31 October 1878
• Citation: 68 Mo. 416
• Parties: SIMMONS v. CARRIER, et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 416

SIMMONS

v.CARRIER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

The facts of this case will be found in a former report in 60 Mo. 581.

The following are the instructions given and refused on the second trial. On the part of plaintiff the court gave the following instructions:

1. If the jury believe from the evidence that the plaintiff furnished the lumber in question to Carrier, as contractor under the other defendants, to be used in the erection of the building mentioned in the petition, and that the same was so used by said Carrier, and that the plaintiffs did file the lien stated in the petition, then the plaintiffs are entitled to a judgment for the value of the lumber so furnished, less the amount paid thereon, if any. And whether or not defendant Roberts paid said Carrier therefor is no defense in this action.

2. The court instructs the jury that although they may find from the evidence that the plaintiff has unintentionally failed to enter the full amount of credits in his accounts filed with his statement of his lien, yet they will find for plaintiffs in such sum as the evidence shows remains now due and unpaid on plaintiffs' account.

3. If the jury believe from the evidence that Carrier received from Roberts the $500 in controversy, and paid over the same to plaintiffs without any previous agreement or any direction to apply the same as a credit on the bill of lumber furnished, if any, for Roberts' building, and that plaintiffs, after so receiving the same, applied it as a credit on the indebtedness of said Carrier to plaintiffs, then, in such case, the court instructs the jury that the plaintiffs had the right to apply said payment, and the defendants are not entitled to a credit for said sum, in this action, unless the $500 was paid to Garth by Carrier, and it was so understood between Garth and Carrier.

4. The jury will, if they find for plaintiffs, say in their verdict what sum, and will also determine as to whether the same is a lien on the building described in the lien.

5. The court instructs the jury that plaintiffs are entitled to six per cent. interest on whatever sum the jury may find to be due the plaintiffs from the date of filing the lien to the present time.

Defendants asked, and the court gave, the following instructions:

4. If the jury believe from the evidence that defendant Roberts paid Carrier the check of $500 on the contract for the Roberts building, and that Carrier paid said check to Garth, in obedience to a promise made in the presence of Garth to Roberts, and that Garth knew when he received said check of $500 from Carrier that the same had been paid to Carrier by Roberts, on said contract, to be paid to Garth, then the amount of said check should have been credited on said account of Carrier on Roberts' building in addition to the other credits testified to by Garth.

5. The court instructs the jury that if you believe from the evidence that the plaintiff has intentionally failed to give credit on the account filed in this cause of any sum paid by the contractor on said account, you will find for defendants Hannah and John Roberts, and will find that no lien exists against said building on said account, and will find against defendant Carrier only the amount due from said Carrier to the plaintiffs, on said account, as appears from the evidence to be due on said account.

Defendants asked, and the court refused, the following instructions, and the defendants excepted:

1. If the jury believe from the evidence that at the time of the sale of the lumber to defendant by plaintiffs, a credit of sixty days was given on the sale, and that plaintiffs began this suit before sixty days had expired upon any part of said account, then the finding must be for defendants.

2. The court instructs the jury that it devolves on the plaintiffs to prove affirmatively, by a preponderance of testimony, that the material sued for and included in his statement filed as a lien actually went into the construction of the building described in the petition, and unless he has done so you will find for defendants Hannah and John Roberts.

3. Even if they should find for plaintiffs they cannot include in their finding any item in the bill of lumber furnished less than sixty days before the commencement of the suit on the 14th day of February, provided they believe from the evidence that the credit given by Garth & Co. was sixty days, and if the jury should even find for plaintiffs, they cannot include in their finding any item of the account which was furnished less than ninety days before the commencement of the suit on the 14th day of February, 1872, provided they believe from the evidence that the credit given by Garth & Co. was ninety days.

6. The court instructs the jury that if plaintiffs intentionally failed to give correct credits on the account which is filed in this cause as a lien, or that the materials furnished by him to said Carrier, and in said account mentioned, were not used in the construction of said building, then no lien exists against said building, and you will find for defendants Hannah and John Roberts.

7. The court instructs the jury that if you believe from the evidence that plaintiffs and defendant Carrier, connived together for the purpose of defrauding defendant Roberts, by filing against said Roberts' building a lien and account for a larger sum than was actually due said plaintiff...