The Crane Company v. Smith
| Decision Date | 15 February 1915 |
| Citation | 173 S.W. 691,187 Mo.App. 259 |
| Parties | THE CRANE COMPANY, Respondent, v. SYDNEY J. SMITH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
Judgment reversed and cause remanded.
McBaine & Clark for appellant.
(1) Plaintiff failed to prove that the goods ordered by King Brothers (the subcontractor) were used by the subcontractor in appellant Smith's apartment houses, and therefore, the court should have directed a verdict for the appellant Smith. Current River Lumber Co. v. Cravens, 54 Mo.App. 216; Schulenburg Lumber Co. v. Johnson, 38 Mo.App. 404; Simmons v. Carrier, 60 Mo. 581; House v. Carroll, 37 Mo. 578; Graves v Pierce, 53 Mo. 423; Stephens Lumber Co. v. Kansas City Lumber Co., 72 Mo.App. 248; Moon v. Brown, 172 Mo.App. 510; Limestone Co. v. Methodist Church, 156 Mo.App. 671; Lumber Co. v. Realty Co., 150 Mo.App. 61. (2) The cause should be reversed and remanded because respondent failed to introduce in evidence the lien paper relied upon and failed to show a compliance with the requirements of section 8217, Revised Statutes of Missouri 1909. Boland v. Webster, 126 Mo.App. 591.
Walker & Walker for respondent.
(1) The evidence of the use of the materials furnished by plaintiff in the buildings was sufficient to take the case to the jury. Darlington Lumber Co. v. Harris, 107 Mo.App. 148; Seattle Lumber Co. v. Sweeney, 85 P. 677; Rice v. Hodge, 26 Kan. 164; Badger Lumber Co. v Muehlebach, 109 Mo.App. 646, 650; Hayden v. Logan, 9 Mo.App. 492.
--Plaintiff's action is to enforce a mechanic's lien as subcontractor against two buildings in Columbia, known as apartment houses. It recovered judgment in the trial court for the enforcement of the lien.
Defendant Smith contracted with McCormick for the erection of the buildings and the latter let the plumbing to King Brothers and they purchased the material from plaintiff, who lives in St. Louis. Plaintiff marked it "Smith Job" and shipped to King Brothers at Columbia. It is contended that there was no proof that the material, though furnished to King Brothers for the buildings by plaintiff, was actually used in their construction. It was shown, clearly, that like material went into the houses, that is to say, just such bath tubs, closets, etc., as were ordered and furnished, were found in the houses, marked with plaintiff's brand and bearing every indicia of being the identical articles that were furnished by plaintiffs. In effect, the only objection made is that no witness kept up with the eye a personal knowledge that these were the same; and as it was shown plaintiff had sold other like material to King Brothers, that destroyed whatever presumption might have arisen had that fact not appeared. We do not think it can be said, as a matter of law, that there was a failure of proof on this account. It could reasonably be said that there was a weakening of proof, but not a failure, and that therefore the question was properly left to the jury. [Darlington Lumber Co. v. Harris, 107 Mo.App. 148, 80 S.W. 688; Badger Lumber Co. v. Muehlebach, 109 Mo.App. 646, 650, 83 S.W. 546; Rice v. Hodge, 26 Kan. 164; Seattle L. Co. v. Sweeney, 43 Wash. 1, 85 P. 677.]
In an action to enforce a mechanic's lien it devolves upon the plaintiff to prove the statutory...
To continue reading
Request your trial