Cahill, Swift & Co. v. McCornish

74 Mo. App. 609, 1898 Mo. App. LEXIS 360

Opinion

Bond, J.

— Plaintiffs as subcontractors seek a personal judgment against E. A. MeCornish & Company and John Cook, general contractors, for $849.95, and a lien therefor upon the premises of the Woerheide Reality & Improvement Company. The suit was begun and tried before a justice and appealed by plaintiffs to the circuit court, where the-court, on the ground that it involved a long account, • committed the cause to a referee to try all the issues and report his findings. The referee thus appointed heard the evidence adduced by plaintiffs (defendants offering no testimony) and recommended a judgment against the contractors for $239.97, as the reasonable value of the materials furnished to them by plaintiffs, and that judgment be entered against the lien for the reasons, first, that the evidence failed to show any authority, express or implied, on the part of the owner of the land for the making of the contract under which the improvements were erected; second, that the evidence failed to show any service of notice of intention to file the lien upon the owner. To this report plaintiffs filed exceptions, which were overruled, and they appealed to this court from a judgment confirming the report. This being a case of compulsory reference, this court has the same power to review the findings of fact made by the referee upon the evidence which it would have in a suit in equity. Wentzville Tobacco Co. v. Walker, 123 Mo. loc. cit. 671, and citations; Bond v. Finley, No. 6891, this court, unreported. To the extent therefore that appellants have preserved apt and proper exceptions to the' findings of the referee on the evidence, it will be re-examined by us. The exceptions taken to the report and passed on by the trial judge are, to wit: “First. Plaintiffs except to the fact stated in the second paragraph where only $239.97 worth of material is alleged to have been furnished by plaintiffs. Second. Plaintiffs except to the finding of fact in the fifth paragraph of the referee’s report. Third,. Plaintiffs except to the finding of facts in the seventh paragraph. Fourth. Plaintiffs except to all the ‘findings of law’ made by the referee in the above entitled cause.”

exceptions to . Sbeapfclflc! mechanic’s ijen: mcnt It is apparent that, except the first, all of the above exceptions failed to point out any specific objections to the report of the referee, for which reason the trial court was justified in overruling them, The Singer Mfg. Co. v. Givens, 35 Mo. App. 602; Dallas v. Brown, 60 Mo. App. 493; Wiggins Ferry Co. v. R. R., 73 Mo. 419; Hornblower v. Crandall, 78 Mo. 582. The first of the foregoing exceptions may mean either that the court erred in finding that the sum therein mentioned, to wit, $239.97, was the reasonable value of the materials furnished by plaintiffs and which were used in the construction of the improvements, or that such sum was an incorrect finding of the amount which plaintiffs were entitled to recover against the general contractors. An examination of the evidence accompanying the report of the referee satisfies us that this sum correctly measures the value of the máterials used in the construction of the buildings, but it also satisfies us that it does not correctly measure the amount which plaintiffs were entitled to recover from the parties with whom they made the contract to furnish materials. The undisputed evidence shows (such parties making no defense) that plaintiffs were entitled as against the contractors to the full amount, to wit, $349.95, for which this action was brought. The failure of plaintiffs to establish their lien for any part of this sum did not deprive them of their right to a. personal judgment against the contractors for the full amount agreed to be paid by the latter for the materials furnished, and the referee should have recommended a judgment for the full amount of the account held by. plaintiffs against the contractors, independently of their right to establish alien. Patrick v. Abeles, 27 Mo. 184; Matlack v. Lare, 32 Mo. loc. cit. 264; Williams v. Porter, 51 Mo. 441.

The judgment herein is therefore reversed and the cause remanded, with directions to the trial judge to enter judgment in conformity with this opinion. It is so ordered.

All concur.