McCarthy Lumber & Construction Co. v. Kinder , 206 Mo. App. 287 ( 1920 )

This is an action brought by an original contractor to recover the sum of $960.19, as a balance due and alleged to be owing by defendants Lee F. Kinder and Eva Kinder to plaintiff for material and labor furnished in the erection of a dwelling and improvements made in connection therewith, and to establish a lien on the building and lot on which it was located. After trial by the court without the aid of a jury, plaintiff recovered in the court below and defendants prosecute their appeal.

Defendants objected to the introduction of any testimony in the court below, for the reason that the petition failed to state any cause of action, and that it had embraced in one and the same count matters of express contract and quantum meruit. The court overruled this objection.

It was then admitted that defendants owned the property; that they acquired title on November 14, 1915; that on the 24th of January, 1916, they executed to the defendant building and loan association, a deed of trust in the sum of $2,600, which was recorded on the 5th of February following.

Defendants then objected to the introduction of the lien account, for the reason that it was not a true account within the meaning of the mechanics' lien statute, because the first two items set out in the account do not state the nature of the work done, or material furnished, or items thereof. This objection the court overruled.

It was then admitted that the said lien account, duly verified, was filed in the office of the clerk of the circuit court, October 16, 1916, and that the items are set out and stated in the same form as set forth in the petition.

John W. McCarthy, who it seems was connected with plaintiff in some official capacity (although the evidence does not disclose in what way), testified that he entered into a contract with defendant Lee F. Kinder during the latter part of October or the first of November 1915, to erect a building on the lot of ground as set out in the petition, located in the City of Farmington, for the sum of $2,376; that he submitted several plans and specifications to defendant before he accepted any particular plan. He states that after defendant had made his selection and had approved the plan submitted, he submitted to defendant the following proposition in writing, which was offered in evidence:

"Oct. 15, 1915. "Prof. L.F. Kinder, Farmington, Mo.

"Dear Sir:

"We propose to furnish all labor and all the material required for the erection completion of your 1 story bungalow dwelling in accordance with the plans and specifications that we have prepared for the same, for the sum of $2,480.

"It is understood that you wish to omit the brick fire place from this building, consequently we will deduct the sum of $104 for this omission, making our net contract $2,376.

"It is understood and agreed between us that during the construction of this building we are to receive as first payment on the work a building and loan certificate amounting to $2,400, and that we are to place this certificate with the Bank making us the best proposition on discounting the same for cash and the amount of this discount together with the amount of some additional work that you wish done in and on your residence, which is not provided for in our agreement, is to be carried by us, you giving as security for the same a second deed of trust on this property.

"We thank you very much for this contract and expect to begin active operations on the work and hope we may be able to turn it over to you by New Year's Day next.

Very truly yours,"

That this however did not contain or embrace all the contract. McCarthy says it was further agreed between them at that time that there were to be some extras and that they made an approximate estimate of their cost; that at the time the contract for the erection of the building was closed he agreed with defendant Lee F. Kinder that, if he performed his part of the contract by giving plaintiff the building and loan certificate for $2,400, plaintiff would take a second deed of trust for the remainder, which he says was to be $250 or $300. Defendants' contention is that the extras were furnished under a separate contract and not as a part of the original contract; and Lee F. Kinder testified that he never agreed to give plaintiff a building and loan certificate for any greater amount than $1,800, and that plaintiff was to take a second deed of trust for the remainder.

Defendants contend that the court erred in refusing certain instructions offered by defendants, as well as in admitting certain items and declaring same lienable. The first two items to which objection is made, and as set out in the lien account are as follows:

"Oct. 15, 1915, — To contract for erection of residence as agreed including the omission of fire-place, flue and foundation for same ............................ $2,376.00

"Oct. 25, 1915, — To enlarging basement as agreed ............................................. 64.00"

Defendants object to these items on the ground that such an account is not a true and correct account as required by statute, because not sufficiently itemized.

By reference to the terms of the contract it will be noted that the statement is as definite as the contract, and a lien statement which is as definite as the contract under which it is furnished is sufficient, and if a lumping price was agreed upon no other price could have been specified, so that the account would have been a just and true one. [Grace v. Nesbitt,109 Mo. 9, 18 S.W. 1118.]

Defendants contend however that even though the price could be a lump price, yet the items going to make up the whole for which the lump sum is charged, should be set out. But this court held, in Mahan v. Brinnell, 94 Mo. App. 165, 67 S.W. 930, that when the lien is filed by the original contractor, who has specifically agreed with the owner to do the job for a certain price, a detailed statement of the items of material and labor that entered into the improvement is not required, as the owner knew what he bargained for when he agreed on the price, and need not be apprised of the basis of the charge by an enumeration of the items of material that went into the construction or improvements as agreed upon, and we have found no decision in this State holding to the contrary where the matter was before the court upon this identical proposition.

Defendant Kinder presumably knew what he was contracting for when he agreed to pay a specified price for the erection of a specified building; and where the contract as here was to erect a bungalow dwelling in accordance with plans and specifications for a particular sum, then the statement is as definite as the contract, and we think that under the particular facts in this case these items are sufficient. [Mahan v. Brinnell, supra; Hilliker v. Francisco, 65 Mo. 598; Mitchell Planing-Mill Co. v. Allison, 138 Mo. 50, 40 S.W. 118.]

In Mitchell Planing-Mill Co. v. Allison, supra, l.c. 57, our Supreme Court, speaking of lien accounts, has this to say:

"The law intended to extend its benefits to laborers and all sorts of mechanics and materialmen who came within its protecting language. Of such it would be unreasonable to expect such an accurate and careful statement of account as might be required of an attorney in bringing an action. [Bayer v. Reeside (1850), 14 Penn. St. 167.]"

We think this account was such a statement of the claim as fairly apprised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such then it was sufficient. [Mitchell Planing-Mill Co. v. Allison, supra, l.c. 56.]

It is next urged that the items in the lien account for the book-cases, skirt-box and table, for which a charge of $44.50 is made in the statement, are not such items as would be lienable.

McCarthy testified that the book-cases were built to fit a particular space in the building, and that the base was built around the cases, fastening them to the wall; that the skirt-box was built to fit along four French windows to take up a particular space; and that the table mentioned was built to fit over the top of the sink, and made especially for that particular purpose, and that all these articles were finished like the other woodwork. Now if this be true, and it was defendants' intention that these articles be made part of this particular building, then they may be held to be lienable.

In St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo. App. l.c. 319, it is said:

"Fixtures are chattels personal which may become a part of the freehold by the manner, purpose and intention with which they are affixed to the realty or some thing appertaining thereto. There is an essential distinction between such things as are deemed fixtures between heir and personal representative, vendor and vendee, mortgagor and mortgagee, and those things which a tenant may remove at the end of his term. The statutes relating to mechanics' lien clearly intend that it shall extend to whatever is a fixture under the broader rule applicable to the former class."

Where there is a real or constructive annexation of the article to the realty, and such article is adapted to the use or purpose of the realty with which it is connected, and it is the intention of the party making the annexation that the chattel shall become a permanent accession to the freehold, then such would be a part thereof. [Ottumwa Iron Works v. Muir, 126 Mo. App. 582, 105 S.W. 29; Crane Co. v. Real Estate Co., 121 Mo. App. 209, 98 S.W. 795 and authorities cited.]

It is next contended by appellant that as all of the items were not embraced in the original contract, the action was not brought in time. The testimony offered on the part of plaintiff was that at the time of the original contract these extras were included. Defendant Kinder says they were not. It was therefore a question of fact for the court, sitting as a jury, to determine; and when such fact is found adversely to appellant, and there is substantial testimony to sustain it, we are without authority to interfere. And even though the last mentioned items complained of were extras, if they were added as a part of the original contract, then such items were properly included in the lien account. See dissenting opinion of ROBERTSON P.J., in McMillan Parker v. Ball Gunning Milling Co., 190 Mo. App. 352, 177 S.W. 315; also the same case in 275 Mo. page 1.

Complaint is also made of the court's failure to give certain instructions asked by defendants at the close of the case, but we find no reversible error in the court's failure to give such instructions.

After a careful consideration of the points involved in this controversy, we are of the opinion that none of the alleged errors urged by appellant are sufficient grounds for reversal.

The Commissioner recommends that the judgment be affirmed.