Wilson-Reheis-Rolfes Lumber Co. v. Ware

• Decision Date: 06 June 1911
• Citation: 158 Mo. App. 179,138 S.W. 690
• Parties: WILSON-REHEIS-ROLFES LUMBER CO. v. WARE et al.
• Court: Missouri Court of Appeals

138 S.W. 690

158 Mo. A. 179

WILSON-REHEIS-ROLFES LUMBER CO. v. WARE et al.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

Rehearing Denied June 30, 1911.

1. MECHANICS' LIENS (§ 149)—PROCEEDINGS TO PERFECT—ACCOUNT—AFFIDAVIT.

The affidavit verifying an account filed to perfect a mechanic's lien should be considered with the account in ascertaining its sufficiency, and if the account apprises the owner of the nature of the demand it should be sustained, as the mechanics' liens statute should be liberally construed.

2. MECHANICS' LIENS (§ 149)—PROCEEDINGS TO PERFECT—ACCOUNT—SUFFICIENCY.

Where the account for which a material-man sought a lien was part of a lien document, reciting that the account was for lumber, millwork, hardware, and material furnished, and at the head of each separate column of the account appeared the words "feet," "pieces," "size," "length," "description," "price," and "amount," the account was not insufficient, in that items of hardware and lumber or mill-work could not be distinguished, where the hardware was described, for example, as "12 pr. strap hgs. $1.45," and the lumber and millwork was designated by the usual trade abbreviations.

3. MECHANICS' LIENS (§ 149) — FORM OF CLAIM—DESCRIPTION OF MATERIALS.

The use of ordinary trade abbreviations in describing material set out in the mechanic's lien account is sufficient.

4. EVIDENCE (§ 457) — PAROL EVIDENCE — MEANING OF ABBREVIATIONS.

The meaning of an ordinary trade abbreviation as used in a mechanic's lien statement may be explained by parol.

5. PAYMENT (§ 39) — APPLICATION — APPROPRIATION BY CREDITOR.

Where a debtor had two accounts for building materials, a materialman may apply payments upon the oldest account; there being no direction by the debtor.

6. MECHANICS' LIENS (§ 157)—PROCEEDINGS TO PERFECT—ACCOUNT—CREDITS—EFFECT OF ERRORS.

Under Rev. St. 1909, § 8217, requiring one filing a mechanic's lien statement to make a just and true account of the demand due after all credits have been given, and section 8223, providing that the court shall render judgment in any sum not exceeding the amount claimed in the demand filed with the lien, although the creditor may have unintentionally failed to enter in his account the full amount of credits to which the debtor may be entitled, the negligent failure of a lumber company which furnished materials to one building several houses, for which the builder had different accounts, to apply a payment upon the account to which it was directed does not, as a matter of law, deprive the company of a lien, for the failure may not have been intentional.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by the Wilson-Reheis-Rolfes Lumber Company against W. M. Ware and others. From a judgment for plaintiff, the defendants, except W. M. Ware, appeal. Affirmed.

J. L. Hornsby, for appellants. Schulenburg & Diehm, for respondents.

NORTONI, J.

This is a suit to enforce a mechanic's lien. Plaintiff recovered a personal judgment against the principal defendant, Ware, owner of the premises, and a judgment sustaining the lien against the property. Defendants, other than Ware, the owner, prosecute the appeal.

Plaintiff, an incorporated company, furnished material consisting of lumber, millwork, hardware, etc., under one general contract, to Ware, who erected the three buildings involved, and defendants, who prosecute the present appeal, are trustees and beneficiaries in certain deeds of trust covering those buildings and the lots on which they are situate. Ware, the owner of the premises, made no defense to the suit, but the other defendants, the trustees and beneficiaries in the deeds of trust, sought to defeat the lien, on the grounds, first, that the lien account is unintelligible and wholly insufficient to support a lien, and, second, that it is not a just and true account, for the reason plaintiff had omitted to credit it with $1,200, said to have been paid by Ware thereon. The amount sued for and for which the lien was sought to be enforced is $1,796.67, but the jury allowed a credit of $600. The two propositions put forward in defense will be considered in the order named.

The lien account was objected to as insufficient, and an argument touching the matter is now urged before us. The items of the account are abbreviated as is usual in such cases. Abbreviations such as "Y. P. Drop Sdg." for yellow pine drop siding, etc., are employed throughout the account. The account is parcel of the lien document filed under the statute, which recites that the account below set forth is for lumber, millwork, hardware, and material furnished by plaintiff under one contract, and at the special instance and request of W. M. Ware, to and for the buildings and improvements described as follows, etc. (describing them); as an illustration of its character, the following nine items are set forth:

                ------------------------------------------------------------------------------------
                Feet.    Pieces.     Size.    Length.        Description.          Price.    Am't
                          12 Pr.        6"                Strap Hgs.                          1.45
                3,000                 1-2x6               B. & Better W. P. Sdg.    24.50    79.50
                   23      1      1  3-8x15        12     Cyp. S. 2 S.                        1.50
                           3       2/8x6/8     1  3-8     O. S. Frames Tr.           3.00     9.00
                           6          14x24    4   L.     Wds.                       1.60     9.60
                  100                                     Casg.                               3.00
                  250                1 1-8"               O. G. Stop                 1.50     3.75
                           1          14x28    4  Lt.     Wdw.                       1.75     1.75
                   67      4       1 1-8x10        16     Fir                       60.00     4.02
                ------------------------------------------------------------------------------------
                

At the conclusion of the entire account, it is recited the above and foregoing materials were furnished continuously on, from, and between April 15, 1907, to, until, and on July 17, 1907, both dates inclusive. The affidavit accompanying the account declares it to be just and true in all respects, and that the items and things therein enumerated were furnished by plaintiff to Ware for and were used in the buildings and improvements above mentioned, etc., and, furthermore, that all just credits have been given to him thereon, so that the account is a just and true one. Such accounts, when considered together with the lien paper and affidavit annexed, have frequently been declared to be sufficient, for they apprise the owner and the public of the nature and amount of the demand asserted as a lien, and, furthermore, disclose that the demand is within the terms of the lien law.

The affidavit required to verify the account is to be considered along with the account itself, in ascertaining the sufficiency of the latter. The statute with respect to this matter is liberally...