Walsh v. Venable

• Decision Date: 04 May 1925
• Parties: J. E. WALSH, Administrator of the Estate of T. R. WALSH, Deceased, Appellant, v. S. T. VENABLE, F. C. NOTROTT and EMMA NOTROTT, Respondents.
• Court: Kansas Court of Appeals

271 S.W. 1003

219 Mo.App. 383

J. E. WALSH, Administrator of the Estate of T. R. WALSH, Deceased, Appellant, v. S. T. VENABLE, F. C. NOTROTT and EMMA NOTROTT, Respondents.

Court of Appeals of Missouri, Kansas City

May 4, 1925

Appeal from the Circuit Court of Linn County.--Hon. J. E Montgomery, Judge.

AFFIRMED.

Judgment affirmed.

Paul Van Osdol for appellant.

Henry J. West for respondents, Notrott.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action against a contractor and owners of the property to enforce a materialman's lien for lumber used in the construction of a house. Plaintiff seeks to recover an alleged balance of $ 874.74 against the contractor, one S. T Venable, and to impress the same as a lien against the property of the owners F. C. Notrott and his wife, Emma.

The facts disclosed are that the Notrotts entered into a contract with S. T. Venable, a contractor, to build for them a house in the City of Brookfield, Linn County, Missouri, the plans and specifications therefor being prepared by one W. M. Workman. Venable asked bids for the material of two lumber dealers. The contract was secured by plaintiff who, as administrator of the Estate of T. R. Walsh, deceased, was conducting the business of the T. R. Walsh Lumber Company.

The petition alleges that plaintiff furnished to defendant Venable the materials and lumber for the construction of a two-story frame residence on a lot in the City of Brookfield belonging to F. C. and Emma Notrott; that the materials were furnished to Venable as the original contractor, under contract with the owners; that plaintiff provided the said materials and lumber as per an itemized account attached to the petition as an exhibit; that all just credits have been given and there is yet due and unpaid on said account the sum of $ 874.74.

It is not denied that the lien was timely filed and notice thereof given. The prayer asks judgment for said sum and that said amount and costs be adjudged a mechanic's lien against the building, land and improvements; that if sufficient property of defendant Venable cannot be found to satisfy said judgment, interest and costs, that special execution shall issue against said building, land and improvements aforesaid. Attached to the petition was the account for materials and lumber furnished which formed the basis of the lien statement.

Defendants F. C. and Emma Notrott filed separate answers admitting ownership of the real estate described in the petition and that S. T. Venable erected for them under contract a two-story residence building thereon. Further answering said defendants make general denial of every other allegation in the petition. Defendant Venable failed to answer but defaulted.

The court, sitting as a jury, tried the issues. The finding was for plaintiff and against defendant Venable in the sum of $ 190, with interest from October 8, 1923, until judgment satisfied. The court further found and decreed that plaintiff have as further relief a special mechanics' lien against the land described in the petition and the buildings thereon, the property of F. C. and Emma Notrott; and that in the event no sufficient property of defendant Venable be found to satisfy the judgment, that special execution issue against said building, land and improvements, to satisfy said judgment.

A motion for a new trial being ineffectual, plaintiff appeals.

There are but two questions for our consideration in this review, to-wit, Did the court err in admitting, over plaintiff's objection, evidence of a special contract whereby plaintiff was to furnish all the material and lumber for the lump sum of $ 1740? and, Was the finding of the court against the weight of the evidence?

There was conflict in the evidence only on one item of payment made on the account sued on. Plaintiff admits payments thereon as follows: $ 500 by check April 4, 1923; $ 400 by cash June 30, 1923; $ 100 by check July 5, 1923; $ 150 July 24, 1923, making a total of admitted payments of $ 1150. In addition to these S. T. Venable testified that he paid plaintiff in cash at the latter's office in May, 1923, an additional amount of $ 400; and in corroboration of this statement defendants introduced in evidence a bill dated April 16, 1923, for part of the lumber, at the bottom of which was shown in dim writing the words "Cr. $ 400." Venable testified this was a receipt for payment of said amount and that it is the only one he had therefor. Plaintiff denies ever having received this payment and states the notation above referred to is not in his handwriting. It is chiefly around this item that the controversy is waged.

As we understand plaintiff's position it is that the suit is based upon quantum meruit, and that it is defendants' contention that there was a special contract whereby plaintiff agreed to furnish the materials and lumber for the sum of $ 1740, after considering the plans and specifications for the house.

The contractor Venable, over the objections of plaintiff testified that before he bought the lumber he submitted the plans and specifications for the house to plaintiff and also to the Clay & Hill Lumber Company and...