Doyle v. Wurdeman , 35 Mo. App. 330 ( 1889 )

Thompson, J.,

delivered the opinion of the court.

This action was brought against the defendant, Raeman, as the owner of a certain lot of ground in the city of St. Louis, and against the defendant, O’ Reilly, as trustee and the defendant, Howard, as the beneficiary in a certain deed of trust thereon, to recover of the owner the contract price of certain brick work done by the plaintiff in building the house on said lot, and to enforce a mechanic’s lien therefor against the property. The defendant Raeman had become a non-resident, and publication was had as against him. He died after the commencement of the action, and the action was revived against the defendant, W nrdeman, as his administrator, who entered his appearance as a party defendant, but did not plead. The defendants O’ Reilly and Howard answered by a general denial. A default was taken against the defen dant Wnrdeman. On trial before a jury the plaintiff introduced evidence establishing in all respects his demand, and also his right to a mechanic’s lien against the property described in his petition. The defendants introduced no evidence. There was a verdict for the plaintiff for the amount sued for and establishing a mechanic’s lien in his favor against the property described in the petition. The defendants, O’Reilly and Howard, appealed to this court and assigned a catalogue of errors all of which seem to be variations of the same idea, and all of which seem to be answered by the decision of this court in McLaughlin v. Schawacker, 31 Mo. App. 365.

The petition recites the contract which is the foundation of the action and its performance, as follows: “That, on or about December 15, 1886, defendant Raeman contracted with plaintiff to furnish all the materials for and perform the labor of laying ninety-five thousand, three hundred merchantable brick, as per brick measurer’s measurement, worth $9.82£ per thousand, or in all nine hundred and thirty-six dollars ; and said Raeman agreed to pay plaintiff that sum therefor. That thereafter plaintiff furnished all the material for and performed the labor of laying the said ninety-five thousand, three hundred brick as per measurement, into the walls of said building.” The mechanic’s lien paper, which was filed in the office of the clerk of the circuit court, sets out, “the just and true account” required by the statute as follows :

“1886.

“Felix Raeman, to James Gr. Doyle, Dr.

“Deo. 22, to March 10, 1887. To furnishing all the material for and laying ninety-five thousand, three hundred merchantable brick at $9.83| per M...$936 00

“Contra:

“By payments on acc’t................ 136. 55

“$799 45.”

The first position of the appellants is that the proof failed to sustain the allegations of the petition. Their argument is that the account set out in the lien as filed would ordinarily be taken to mean ninety-five thousand, three hundred brick by numerical or actual count, which, as the evidence shows, would be about twenty-five per cent, more brick than the same amount of brick by wall measurement. The second and. third objections are grounded upon the same idea, These objections are answered by the decision of this court in McLaughlin v. Schawacker, 31 Mo. App. 365, where the items as stated in the lien paper were as follows:

“To labor and materials in furnishing and putting into building of Chris. Sehawacker, 414 S. Third street, St. Louis, Mo. (including brick, mortar, labor and all materials), 10,157 stock brick, at $43 per M...................$436 57

“To labor and materials in furnishing and putting into same building (including brick, mortar, labor and all materials ), 345,073 hard red brick, at $13.50 per M......................$3063 40.”

It was observed of this account by this court that it was “ framed with a view of making separate charges for two classes of brick, laid in the wall, according to what is known as wall measurement, which is the measurement established by the statute. Acts of 1885, p. 200, sec. 3.” And we held that this statement of account was sufficient under the statute relating to mechanics’ liens. The same may be said of the account embraced in the lien paper in the case now before us. It is upon its face an account rendered by a brick mason for a given number of brick, furnished by the mason and laid in the wall of the debtor’s house, according to wall measurement. It is not susceptible of any other construction. It is to be read with reference to the governing statute, to-wit, the act of 1885, above cited. It is not indefinite or uncertain because it does not in terms refer to the statute. The statute relating to mechanics’ liens undoubtedly requires the account filed with the lien to be sufficiently definite and certain to inform any person entitled to know, the nature and amount of the labor and materials for which the lien is claimed. But it is not necessary that the mechanic should refer to the statute, any more than it would be necessary for him to file a yard stick as an exhibit. If A. sues B. for the price of a barrel Of flour containing so many pounds, it is not necessary that he should inform him that he means avoirdupois weight, for fear that B. will fall into the error of supposing that he means apothecaries weight or troy weight. In this case the account filed with the lien paper by necessary implication refers itself to the statute for its interpretation, and it was not even necessary for the plaintiff in drawing his petition to state, as he did out of abundant caution, that the measurement was according to bricklayers’ measurement, because the statute determined that.

As the petition in this case was drawn in express terms with the view of charging for the work according to bricklayers’ measurement, which the evidence shows to be the same as wall measurement, and also to be the measure prescribed by the statute, there was no variance between the petition and the evidence.

The other objections made by the appellants are so-plainly destitute of merit that we do ■ not consider it necessary to state them for the purpose of answering them.

We are asked by the respondents to affirm this judgment with ten per cent, damages. The respondent presses upon our consideration the view that this is a case where a mechanic is seeking to enforce the lien given him by the statute for a demand which is established by uncontradicted evidence ; that the decision of this court, in McLaughlin v. Schawacker, was rendered on June 5, 1888, long before the trial of this action took place; that that decision disposes of the only substantial objections made by the defendants in this case ; that the plaintiff has been put to the expense of prosecuting an appeal in this court which is either frivolous or vexatious, and ought to be reimbursed as far as the-court has the power to reimburse him, by an award of damages under section 3777, Revised Statutes, which empowers the court, in affirming the judgment or decision, “to award to the appellee or defendant in error, such damages, not exceeding ten per cent., on the amount of the judgment complained of, as may be just.” In response to this application the learned and diligent counsel for the appellants suggested at the bar that the decision of this court in McLaughlin v. Schawacker, supra, was not known to him, until he had commenced the preparation of his brief, the official report not having been published when the appeal was taken. The decisions of the appellate courts in this state are so numerous that we apprehend that we go far enough when we hold counsel to a knowledge of our decisions after they have been officially reported.

The judgment will be affirmed without damages.

All the judges concur.