Mitchell Planing Mill Co. v. Allison , 1895 Mo. App. LEXIS 554 ( 1895 )

Ellison, J.

This action was brought by a subcontractor to enforce a mechanic’s lien against defendant’s property for material furnished to Brown, who was the contractor with defendant to build his house. The lien paper, set out in the statement of this cause, was excluded by the trial court, and the correctness of this ruling is the principal question for determination. The point made against the lien paper is that it is not the “just and true account,” required by section 6709, Revised Statutes 1889, its items not being dated, and that it does not therefore appear when they were furnished. The statute requires the claimant to file with the clerk of the circuit court “a just and true account of the demand due him,” within the times limited “after the indebtedness shall have accrued.”

Hen paper: item-What is a just and true account? It must necessarily consist of the items which make up the demand, with the prices for which they were sold and the dates when they were sold. “An account is defined tobe a detailed, statement of mutual demands in the matter of debit and credit between parties, arising out of contract, on some fiduciary relation.” McWilliams v. Allan, 45 Mo. 574. “What the legislature evidently intended was that the lienor should exhibit his demand fully,” etc. It is said in Coe v. Ritter, 86 Mo. 286: “Of course, it is expected that a ‘just and true account’ shall contain all the various items and dates that go to make it up, for this is the accustomed meaning of the words.” (Italics ours.) The cases of Rude v. Mitchell, 97 Mo. 365, and Grace v. Nesbit, 109 Mo. 9, are in harmony with these quotations. In the former it is said that “there must be an account which answers to the ordinary signification of the term.” It is so apparent that when one asks for a true account of a series of purchases which have been made in his behalf, or for which he is liable, that he should receive a bill of the items, with dates, that it is difficult to understand how it could be questioned. It is particularly so in a case where one’s property is to be charged with the payment of a demand, for which he did not contract, and of which he may know nothing except what he may learn on investigation. A lien account for building material may extend over a great length of time. The owner is entitled to all reasonable data for the purposes of investigation. Any practitioner knows that in litigation on accounts, the dates of items frequently furnish the most satisfactory basis for the examination of witnesses and the ascertainment of the facts. They furnish the most ready mode of investigating.

WaieTTpriority. But aside from the foregoing, the law itself further contemplates that the lien paper shall show the dates of the items, so that priorities, in litigation arising over conflicting interests, may be determined. By the provisions of sections 6707 and 6711, Revised Statutes 1889, priorities between mechanic lienors and other incumbrancers are to be determined by the date (in case of material-men) of furnishing the material; that is, when it was begun to be furnished. And so it is held in Reilly v. Hudson, 62 Mo. 383, and Douglas v. Zinc Co., 56 Mo. 399, that the date of furnishing the material will determine the question of priority over mortgages. And so we held it would determine the priority of a lienor over a vendee. McAdow v. Sturtevant, 41 Mo. App. 226. The case of Coe v. Ritter, 86 Mo. 277, involved a contest between a lienor and a mortgagee. The priority of the mortgage was ascertained from the date of the first item in the lien paper, which the court held could not be altered to the prejudice of the mortgagee by evidence that the lien had its inception at an earlier date. It is not meant by the foregoing to hold that the mere omission of a date to an item, or an erroneous date to an item would invalidate a lien paper, when it has not affected the rights of others; or that there may not be instances where, from the nature of the transaction, definite dates could not be given; but that there should be a substantial compliance with what we conceive to be a necessary requisite of the statute, as to dates, in ordinary cases, we entertain no doubt. We so held in Curless v. Lewis, 46 Mo. App. 278—a ease wherein we interpreted Judge Shekwood’s opinion in Coe v. Ritter, as we here interpret it.

____ between given dates: affidavit. But it is claimed that since the lien paper in controversy contained the statement that the material was “delivered and used in the building above described between April 20,1893, and July 19,1893; ” and since the affidavit attached thereto states that the “demand accrued within four months prior to the filing of this lien” the dates are sufficiently specified. We can not sustain this contention. The first statement just quoted could be true and yet be subject to all the objections we have pointed out; and besides, every item could have been furnished, delivered and used on April 21, or any other date between that and July 19. The second statement refers to no date and merely states the conclusion of the affiant, that the account accrued within four months. But, .if it be conceded to be sufficient to show when the account accrued, it in no way aids the defects, in the account which we have been endeavoring to point out. At most it can only show that the last item of the account accrued some time within the period of four months next before the lien was filed. A statement of when the account in controversy here accrued, or was filed, can in no manner aid the defects it contains. The affidavit to a lien paper could show when an unitemized, or “lump” account, or balance of account, accrued, but such fact would not make of such an account the account meant by the statute.

Our decision here is in conflict with the case in the St. Louis court of appeals, of Hayden v. Wulfing, 19 Mo. App. 353, and we must therefore certify this cause to the supreme court.

_._. lumping price. 2. A further objection to this account is that, in the matter of prices, nearly the whole of the items are disposed of by a lumping charge. This is improper, unless it appears that they were purchased in that way by the contractor, for the sum stated. Grace v. Nesbit, supra.

practice.-motion for new trial: taxing 3. Brown, the contractor, died before the institution of this suit and Maria J. Brown, his administratrix, was made a defendant. Judgment was rendered against the estate for the , . , amount of the claim. The administratrix filed a motion, which the court sustained, asking that the costs be taxed against plaintiff under section 210, Revised Statutes 1889, the suit having been commenced in less than one year from the date of the letters of administration. Plaintiff complains here of the action of the court in sustaining said motion, but, as he made no reference to such action in his motion for new trial, we can not notice the point.

The judgment, with the concurrence of the other judges, is affirmed and the cause transferred to the supreme court.