Dallas v. Brown , 60 Mo. App. 493 ( 1895 )

Smith, P. J.

This is an action on a mechanic’s lien. The cause was sent to a referee, who in due time filed his report. Five days after filing the report by the referee, defendants filed their exceptions thereto. But we can not notice the exceptions, since the same were not filed as required by statute within four days after the filing of the report of the referee. R. S., sec. 2154. The record does not show upon what ground the exceptions were overruled by the court below, but we may presume that it was because the same was not timely filed. Reinecke v. Jod, 56 Mo. 386.

Besides this, it is apparent from the face of the abstract that it does not contain all the evidence adduced before the referee, and for that reason, if for no other, we can not condemn the finding of the referee, on the ground that it is against the evidence. And the same remark applies to the exceptions filed to the first report.

The exceptions are subject to the further objection that they are too general in that they did not inform the court in what respect the finding of the referee was not warranted by the law or the evidence. These matters were not specially pointed out and for that reason were properly disregarded. Singer Mfg. Co. v. Givens, 35 Mo. App. 602, and cases cited.

It does not appear from the face of the record proper on what account the referee found for the plaintiff the small balance he did. We can not tell whether it was for the work and labor performed or the materials furnished in the construction of the cisterns, or privies or the sodding. It may have been that the claim made for. the sodding was offset by the payments made by defendants. The question as to whether plaintiff was intitled to a lien for the item of sodding does not properly arise on the record before us.

And as to the objection that the lien should not be allowed because the account contains lumping charges it is to be observed that the petition charges that the work and labor done and material furnished, for which the lien is claimed was in connection with the construction and erection of ten cottages under several general contracts, etc. It does not clearly appear to which item of the plaintiff’s account the defendant’s objection goes. A reference to the account set forth in the petition will we think show that it is sufficiently specific to meet the requirements of the statute. If a lumping price was agreed upon no other price could have been specified. As we understand it, for the materials and labor mentioned m each item of the lien account, the price therefor was by agreement fixed at the lumping sums charged. This was sufficient under the statute. Grace v. Nesbitt, 109 Mo. 9; Rude v. Mitchell, 97 Mo. 365; Hilliker v. Francisco, 65 Mo. 598.

We perceive no reversible error in the record and so affirm the judgment.

All concur.