Springfield Planing Mill, Lumber & Const. Co. v. Krebs

• Decision Date: 24 March 1917
• Docket Number: No. 1926.,1926.
• Citation: 196 Mo. App. 432,193 S.W. 621
• Court: Missouri Court of Appeals
• Parties: SPRINGFIELD PLANING MILL, LUMBER & CONSTRUCTION CO. v. KREBS et al.

193 S.W. 621

196 Mo. App. 432

SPRINGFIELD PLANING MILL, LUMBER & CONSTRUCTION CO. v. KREBS et al.

No. 1926.

Springfield Court of Appeals. Missouri.

March 24, 1917.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Mechanics' lien action by Springfield Planing Mill, Lumber & Construction Company against Ehart H. Krebs, Eva Krebs, and others. Judgment for plaintiff, and defendants Krebs appeal. Reversed and remanded, with directions.

Lewis Luster, of Springfield, for appellants. Patterson & Patterson, of Springfield, for respondent.

STURGIS, J.

Suit to enforce a mechanic's lien. Plaintiff is a subcontractor and materialman, furnishing the lumber, millwork, etc., which entered into the buildings. The defendants Krebs and wife are the owners of the premises, and defendant John Ragsdale is the contractor. The other defendants are interested as trustees and beneficiaries of certain deeds of trust on such premises. The trial court sustained the lien rendering judgment in the sum of $419.57, and the landowners only, Krebs and wife, have appealed. When speaking of defendants we mean such landowners. The contractor, Ragsdale, was served by publication, made no appearance, and hence no personal judgment was rendered against him.

The evidence shows that the defendants Krebs and wife, being the owners of a certain lot in Springfield, Mo., made a contract with defendant Ragsdale to furnish all the material, labor, etc., and build for them thereon a house and barn according to certain plans and specifications for the price and sum of $2,200. The contract was for the completed buildings at this price. The contractor, Ragsdale, thereupon made out two itemized estimates, the one for the lumber necessary to erect the house, and the other for the millwork. These estimates he submitted to plaintiff for prices, and the plaintiff agreed to furnish the lumber as per estimate for $425 and the millwork for $440. The evidence shows that the estimate for the lumber, speaking generally, included such building material of that character as is commonly kept in stock ready for use — the standard kinds and dimensions. The estimate for millwork included such building material of the same character as required some work in preparing or fitting it for use — doors, windows, staircases, etc. It is also shown that some items might be placed on either of such estimates indiscriminately, depending upon whether same were kept in stock or had to be made, or whether the contractor wanted same finished or fitted for use or the material furnished and the fitting and finishing done by the contractor. Most items would clearly belong to the one class or the other, but some items might be classed by the contractor as lumber or as millwork according to his notion or convenience. The point is that even a person who is familiar with that business could not tell by looking at the completed building or what went into it just what items may have been furnished as lumber and what as millwork. This we think will be found to be of no very great importance in the present case, as doubtless it made little difference in the cost whether such items were furnished as lumber or millwork. It might make considerable difference, however, had the subcontracts been let to different persons.

The evidence, we think, is sufficient to show that plaintiff furnished all the material covered by these two estimates, and substantially all of same was used by the contractor in the construction of the building. Some small changes were made in the items of these estimates after they were first submitted to plaintiff, but the lien claim is based on the estimates as finally agreed to. It appears, however, that the lumber used in constructing the barn, a small structure, was not included in these estimates, but was furnished by plaintiff, amounting to $53.50. The items of this are set out in the lien claim. The plaintiff also furnished the contractor considerable other building material, cement, chats, sand, extra lumber, etc., itemized in the lien account, amounting to $190.22,

The serious matter for our consideration is the sufficiency of plaintiff's lien claim filed in pursuance of section 8217, R. S. 1909, relating to mechanic's liens, and on which this suit is based. This lien statement, after reciting that plaintiff furnished the materials mentioned in its account under contract with John Ragsdale, contractor, and describing the property on which the buildings and improvements were erected and the ownership of same by Krebs and wife, then sets out its account, two items of which are as follows:

                3-21-15.  Lumber per estimate No. 264.........  $425 00
                3-22-15.  Millwork estimate No. 44 on bungalow  $440 00
                

The defendants contend that these so-called items are wholly insufficient to comply with the statutory requirements giving the plaintiff a right to have same declared a lien on their property.

On the facts stated we must, under the frequent rulings of our courts, sustain defendants' contention. No contractual relation exists between plaintiff, a subcontractor, and the defendant landowners. Defendants have never agreed to pay plaintiff anything, and owe it nothing. It is only by force of our mechanics' lien statute that plaintiff had a right to subject defendants' property to the payment of the debt which the contractor, Ragsdale, owes the plaintiff. Having furnished the material which went to build defendants' house the plaintiff, by complying with the provisions of the statute, can compel the defendants to pay out of their property this debt, or such part of it as represents the reasonable value of the material so furnished. Grace v. Nesbitt, 109 Mo. 9, 18, 18 S. W. 1118. And this is true, although such landowners have paid to the contractor all that is due. The mechanics' lien statute giving contractors, subcontractors, materialmen, and laborers this extraordinary remedy is just in principle and is to be liberally construed, but the rights conferred are statutory and depend on a compliance with the terms imposed by the statute giving such rights. To avail himself of the benefits conferred by this statute the plaintiff must comply with the substantial requirements of same. One such requirement is that the lien statement required to be filed must contain "a just and true account of the demand due him after all just credits have been given." The Supreme Court, in Rude v. Mitchell, 97 Mo. 365, 11 S. W. 225, said:

"These liens are creatures of the statute, and the lienor must make and file an account which is a fair and substantial compliance with the law. If he fails to do this he has no lien for the materials and work not thus specified." Mining Co. v. Coyne, 164 Mo. App. 492, 509, 147 S. W. 148; Foster v. Wulfing, 20 Mo. App. 90.

What is a just and true account as required by the statute has been frequently adjudicated. The general rule requires the account to be fairly itemized; but to what extent depends somewhat on circumstances. It largely depends on the contract with the lien claimant under which the indebtedness arose. It will generally be found sufficient if the lien account filed is as definite and specific as the contract under which the labor or material or both were furnished. Kern v. Pfaff, 44 Mo. App. 29, 34. If the landowner is given by the lien account the same data as was furnished the subcontractor or materialman in fixing the price which he charged or contracted for, together with such price, the account will generally be fair and just. This information as to what material, the quantity and kind, was furnished by the party seeking the lien and the price or prices charged or contracted for must be shown by the lien account, and it will not suffice to refer the landowner to some outside contract, statement, or estimate which may or may not be known or accessible to such landowner. The Supreme Court, in Rude v. Mitchell, 97 Mo. 365, 373, 11 S. W. 225, 227, stated the law thus:

"Many things are often included in these building contracts for which the law gives no lien; and when it calls for a just and true account, it means a fairly itemized account showing what the materials are, and the work that was done, and the price charged, so that it can be seen from the face of the account that the law gives a lien therefor. A lumping item of the whole contract price on the one hand, and the credits on the other, is no compliance with the law at all. The account should be complete on its face, and a reference to plans and specifications for the work done and materials furnished is a worthless reference and adds nothing to the statement."

In Grace v. Nesbitt, 109 Mo. 9, 19, 18 S. W. 1118, 1120, after quoting and approving the above statement of the law, the court added:

"We understand from this opinion (which is given entirely upon the item of account filed in that case) that the account must show what the materials were, what work was done, and the prices charged. In other words, the statute requires more than merely giving `a lumping item of the whole contract price.' It requires a specification of the work done or material furnished, so that it can be seen from the face of the account that the law gives a lien therefor, and that the owner can investigate the reasonableness of the charges. If a lumping price was agreed upon between the parties, no other price could have been specified so that the account would have been `just and true.'"

The reason for requiring a lien statement to contain a just and true account is that the landowner may have therefrom what materials the lien claimant claims to have furnished, and what prices he charged therefor, so...