Williams v. Stroub
| Decision Date | 19 April 1902 |
| Citation | 67 S.W. 875,168 Mo. 346 |
| Parties | WILLIAMS v. STROUB et al.; and LONG-BELL LUMBER COMPANY v. WILLIAMS, STROUB et al.; ANNA O. STROUB, Appellant in Each Case |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Affirmed.
Evans & Finley for appellant.
(1) Section 6709, Revised Statutes 1889 (R. S. 1899, sec. 4207) requires that every original contractor, within six months . . and every other person . . . within four months, shall file with the clerk of the circuit court a just and true account of the demand due him or them. . . . and a true description of the property . . . . which shall in all cases be verified by the oath of himself or some credible person for him. In this case there is no verification whatever, for the reason that the account and description follow the affidavit, and the reference is to the preceding and foregoing statement and description. (2) The statement is not sufficiently itemized and the dates are not sufficiently set out. Reede v. Mitchell, 97 Mo. 373; Walden v Robertson, 120 Mo. 38. (3) The verdict was against the weight of the evidence, which so clearly preponderates in favor of defendant Anna Stroub that to allow it to stand would do injustice to defendant. Bank v. Armstrong, 92 Mo. 265; State v. Primm, 98 Mo. 372; Dean v. Fire Ass'n, 65 Mo.App. 209. The contractor, J. C. Williams, failed to perform his contract, for the following reasons: (a) He allowed the buildings to be incumbered with liens. Taylor v. Peter, 23 Mo. 244. (b) He failed to complete the building within the time limited in the contract, and through no fault of defendant Stroub. Miller v. Phillips, 31 Pa. St. 218; In re Geadon Waterworks Co., 72 Law T. 832. (c) He failed to comply with the requirements of the city ordinance as the contract prescribes, and it must prevail. Smith v. Lenning Co., 43 Pa. 967. (d) He failed to get the certificate of Dennis Stroub, as the contract required, and this requirement is binding upon the contractor, unless the certificate was arbitrarily and without reason refused. Ray v. Bateler, 40 Mo.App. 213; Del Bondio v. Dold Packing Co., 79 Mo.App. 465; Chapman v. Railroad, 114 Mo. 547; Nofsinger v. Ring, 71 Mo. 149; Spink v. Mueller, 77 Mo.App. 85; Williams v. Railroad, 153 Mo. 487. (e) If plaintiff relied upon the acceptance of the building by defendant Anna Stroub as a waiver of a substantial performance of the contract, he should both plead and prove it. Ray v. Bateler, supra; Mohney v. Reed, 40 Mo.App. 99; State ex rel. v. Peterson, 142 Mo. 527. (f) The acceptance of the building does not waive the right of defendant to recoup damages growing out of the breach of the contract. 29 Am. and Eng. Ency. Law, 901; Mohney v. Reed, supra; Spink v. Mueller, 77 Mo.App. 91. (g) The contractor could not use inferior materials and perform inferior work, and then recover the contract price less the difference in the materials and work. May v. Menton, 41 N.Y.S. 650. (4) The court should have found and determined the rights of defendant Anna Stroub on her counterclaim. A general finding for plaintiff without any special finding upon the defendant's counterclaim, is an imperfect finding, of which advantage can be taken by a motion in arrest of judgment. The Ashenbroedel Club v. Findlay, 53 Mo.App. 257; Cattell v. Dispatch Co., 88 Mo. 359; Bacon v. Perry, 25 Mo.App. 73; Erdbruegger v. Maier, 14 Mo.App. 258; Whittlesey's Mo. Practice, sec. 324.
W. R. Cowley and Kinley & Kinley for respondents.
(1) The bill of exceptions shows that the plan of the buildings in question was introduced, but the same is nowhere preserved. This case was tried by the court and all presumptions are indulged in to support the judgment, and if it appears that a portion of the material evidence is omitted from the bill of exceptions, the presumption is that such omitted evidence supports the court's findings and judgment. Nichols v. Carter, 49 Mo.App. 401; Kimmel v. Benna, 70 Mo. 52. (a) Reversal is chiefly asked in this case because the finding and judgment of the court is contrary to the evidence, and in such instance all the evidence should be set out in bill of exceptions and abstract. Barge Resort v. Brooks, 10 Mo. 531; State v. Clarkson, 96 Mo. 364; Irvine v. Karnes, 58 Mo.App. 254; Storey v. Patton, 61 Mo.App. 12; Hall v. Reed, 17 Ohio 498; Davis v. Vories, 141 Mo. 234; Ogelbay v. K. C. Dental Coll., 71 Mo.App. 339. (b) The general statement that "this was all the evidence given in the cause," effective as it is, does not always control. If the bill shows that it does not contain all the evidence, the recital will be unavailing. Oberfelder v. Kavanaugh, 29 Neb. 427, 45 N.W. 471; Stout v. Turner, 102 Ind. 418; Railroad v. Hays, 15 Neb. 224, 18 N.W. 51; Taylor v. Davis, 138 W. Rep. 642. (2) The finding of the court in the case of John C. Williams v. Anna O. Stroub, in which the Long-Bell Lumber Company was required to implead, was correct, and shows, so far as appellant Anna O. Stroub and Williams were concerned, that a finding was had on the alleged counterclaim of Anna O. Stroub of $ 3,270, and that after giving her credit for all she was entitled to claim by way of damages for failure to carry out contract for building said houses, there was found a balance due Williams of $ 1,294.13. Hence, there must have been a finding of the court as to the defenses set up by Anna O. Stroub. Taylor v. Short, 38 Mo.App. 21; Schaob v. Woodburne, etc., 56 Mo. 156; Hoyle v. Farquarhson, 80 Mo. 378; Cass Co. v. Bank, 157 Mo. 133; Woodham v. Cline, 130 Cal. 497; Frantz v. Harper, 130 Cal. 18; Miller v. Stephenson (Ind.), 59 N.E. 497.
These actions are by different parties to enforce liens against certain storerooms, with rooms above them, one a mechanic's lien, and the other a materialman's lien. They were consolidated by an order of the court.
In Williams's suit he claims a balance to be due him of $ 2,664.13. To this suit the defendant Anna O. Stroub filed a separate answer, in which it is alleged she made a contract with Williams to build the houses in accordance with certain plans and specifications, with certain grades of materials, and in a specified time, and that he did not do either. That the Long-Bell Lumber Company, by its name of Pacific Coast Lumber Company, had as security joined said Williams in a penal bond in the sum of seven thousand dollars, conditioned that Williams would perform and carry out the contract made between him and said Anna O. Stroub. The answer further states that the "Long-Bell Lumber Company has filed in the office of the clerk of the circuit court of Jackson county, Missouri, a statement of its claim for material furnished said Williams for the erection of said buildings and improvements on the land of this defendant, for the purpose of establishing a lien upon said buildings and land, for the amount of said materials, said amount being alleged to be fifteen hundred dollars and fifty cents," and said Anna O. Stroub in said separate answer prayed the court to order, adjudge and decree that the said Long-Bell Lumber Company be made a party to this suit and be ordered to file herein its claim for materials furnished to and used in the construction of said building for which it claims said lien upon the premises of this defendant.
After the filing of the foregoing separate answer of said Anna O. Stroub, on December 3, 1896, the Long-Bell Lumber Company, by order of court, was made a party defendant to said suit, and it filed its answer and cross-petition in which it prayed judgment against Williams and a lien against the real estate in question, for $ 1,500.50, and also in addition a general judgment against Williams for the sum of $ 1,349.92, for money advanced him with which to erect the buildings in question.
On January 11, 1897, the Long-Bell Lumber Company brought suit against John C. Williams, Anna O. Stroub and others alleged to be interested in said real estate, to enforce its mechanic's lien against the real estate in question for the amount of $ 1,500.50.
To this petition the defendant Anna O. Stroub filed her separate amended answer, alleging that she had made a contract with Williams to erect such buildings in a specified manner, with a certain character of materials and in a fixed time under a penalty of three dollars per day for every day beyond such time that said buildings remained unfinished. Said answer also alleged that plaintiff, the Long-Bell Lumber Company, had joined defendant Williams as his surety in a bond of said defendant Anna O. Stroub in the penal sum of seven thousand dollars, conditioned that said Williams would fully perform the conditions of his agreement with said Anna O. Stroub, and then after alleging Williams's failure to faithfully perform said contract as to manner of building and character of material used, prayed judgment against plaintiff and defendant Williams for $ 3,270. There was no prayer for judgment for the penalty of the bond pleaded in this answer, nor for an assessment of damages thereon. Nor was judgment rendered for the penalty of said bond. To this answer plaintiff filed its reply, being a general denial.
On trial of the cases the plaintiff Long-Bell Lumber Company introduced its notice served on defendant Anna O. Stroub owner of the property, and proved its service on October 3, 1896. Plaintiff also introduced its lien and account, to which defendant objected upon the ground that it was not in accordance with the notice plaintiff claims to have served upon the defendant, and upon the ground that the lien account is unintelligible and is not a fair statement of the materials furnished or claimed to have been furnished by the Long-Bell Lumber Company; that it is not an...
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