National Press Brick Co. v. W. H. Lester Construction Co.

160 S.W. 1027, 177 Mo. App. 573, 1913 Mo. App. LEXIS 63

Opinion

ALLEN, J.

This is an action to enforce a mechanic’s lien. The only question involved in the appeal pertains to a lumping charge in the lien account filed. The debit side of the lien account is as follows: March 8, 1910—To 2,000 Common- Brick

(8%x2%x4) ..........................$ 15.00

April 6, 1910-—To 3,000 Common Brick (8y4x21/4xá) .......................... 22.50

May 31, 1910—-To 10,000 Common Brick (8%x2%x4) .......................... 75.00

June 1-29, 1910—To 137,000 Common Brick (8i4x2%x4) .......................... 1027.50

June 23-Sept. 9, 1910—To 16,491 Enamel Brick, Special Sizes, as itemized on Statement (A) ............................ 2243.43

July 5-16, 1910—To 81,000 Common Brick (8%x2%x4) .......................... 607.50

July 13, 1910—To 8,000 Enamel Stretcher Brick ..................'............. 800.00

$4790.93

Then follow various credit items totaling $2531.48, leaving a balance of $2259.45, for which amount the lien is sought to be enforced. The lumping charge in question is that for the 16,491 enamel brick, totaling $2243.43. Attached to the account is “Statement A,” which, without specifying dates or prices, gives in detail the number of different kinds and sizes of enamel brick furnished. There was judgment below sustaining the lien, from which the owners of the property have appealed.

Appellant takes the position that the lumping charge in question is not authorized under the mechanic’s lien statute, in view of the evidence relating to the purchase by the contractor, W. H. Lester Construction Company, of these enamel brick from the brick company, respondent herein.

The evidence reveals that the contractor furnished the plaintiff with a list of various enamel brick, of different shapes and of special sizes, and that the plaintiff quoted the contractor certain prices for the various classes of brick contained in this list ; and quoted a price of $7.50 per thousand on the common brick. The plaintiff did not manufacture the enamel brick, but purchased the same from a manufacturer, and informed the contractor that its quotations were based on shipments of carload lots, and that if less than carload lots were required, the prices would be subject to additional charges for packing in barrels and freight or express above the regular carload rate. Plaintiff made these quotations in writing, and the contractor signed a written acceptance of the same, which paper constituted the contract between the parties at that time.

On behalf of plaintiff, its secretary and sales-manager, Charles W. Irwin, testified that after plaintiff had commenced to make deliveries under the above contract, and as the work progressed, a number of changes were made in the original list that had been furnished plaintiff, and that the contractor ordered a great many enamel brick of special shapes and sizes which were not contemplated by the original contract, and that in many instances it was necessary that these orders be filled very quickly; that the matter became so complicated on account of these extra orders and the special brick required, and the fact that the original prices were on a carload basis, whereas the brick furnished under the special orders had to be packed in barrels and shipped by local freight, that the witness interviewed Mr. Lester, representing the Contractor Company, telling him that prices could not be at once quoted on these special orders; and that it was thereupon agreed between the plaintiff and the contractor to treat this entire lot of enamel brick, i. e.,

special sizes itemized on “Statement A,” in disregard of the original contract of the original prices; that the plaintiff would make a reasonable price for this entire lot; and that plaintiff and the contractor would afterwards go over the matter and agree upon what these brick were worth. It appears that the last delivery was made on September 9, and this witness testified that, on September 15, he had a further conference with Mr. Lester, the contractor’s representative, at which time they agreed that the total price of $2243.43 would be reasonable for the entire special lot of brick.

In cross-examination this witness testified that the enamel brick in question were sold “on open account,” on the understanding that the price would be reasonable “on the winding upon of the contract;” that he said to Mr. Lester, “now we will get all these special sizes here, Mr. Lester, and we will then have the bills from the company, showing what they cost, and we will put these specials all in one lot and agree upon a price;” that it was agreed to disregard the contract prices, and that the plaintiff would make one entire price, which price would be reasonable, and that the parties would undertake to agree as to what would be a reasonable price for the total.

The cause was referred by the lower court to "W. K. Koeraer, Esq., of the St. Louis Bar, to try all of the issues, and we quote that portion of the referee’s report in which the latter deals with the lumping charge for the item here under consideration, as follows:

“Defendants contend that this ‘lumping’ charge is improper, for the reason that this special brick was not furnished for a ‘lump’ price agreed upon prior to the sale. Therefore, say defendants, the brick was furnished on an open account and the full particulars of this account should be set forth. The fact is, as shown by the evidence, that the delivery of these brick was commenced under the terms of the contract of Jan- nary 19, 1910, whereby specific brick were agreed to be sold for specific prices, but that, during the progress of the delivery of such brick, said contract, in so far as it pertains to the special brick, was abrogated, by mutual agreement, both as to quantities and prices and it was thereupon agreed between the parties that after all special brick that might be furnished by plaintiff had been delivered, plaintiff and the Lester Construction Company would agree upon a lump price therefor. Pursuant to this agreement, plaintiff furnished the brick itemized in ‘Statement A,’ annexed to this lien statement, and subsequent to the delivery of all of this brick, plaintiff and defendant Lester Construction Company agreed upon a lump price of $2,243.43 therefor. The question now presented is whether or not a statement of account itemizing the material thus delivered, and then making a lump charge for the whole thereof, is a ‘just and true account’ within the meaning of section 8217, Revised Statutes of 1909. The referee is of the opinion that under the decisions of Grace v. Nesbitt, 109 Mo. 9, and Planing Mill Co., v. Allison, 138 Mo. 50, this account substantially complies with the statute. These cases proceed upon the theory that the purpose of the statute in requiring an account of the demand due to be filed is to advise the owner of the amount and quantity of materials furnished, and the amount due therefor, in order that the correctness and justness of the demand may be investigated, and that the owner may be able to retain from the contractor enough of the contract price to discharge the claim; that if a lump price is agreed upon between the parties, no other price can be specified so that the account will be ‘just and true,’ and that to place a value on each item of the account would be to arbitrarily apportion the entire amount among the respective items. As stated in the case of Grace v. Nesbitt, supra, l. c. 18: ‘The materials were bought in a lump for an entire price, and this appears from the account filed. In such case no detailed statement of the values of items could have been given more accurately than as an estimate which could have been made as well by the owner. What the owner wanted to know was the price paid so he could not be charged more. ’

“It is true that in the above cases the agreement for a lump price was made prior to the sale of the materials, but the reasons given in these cases for the conclusions reached would be applicable whether the price agreed upon before or after the materials were furnished. In either event, the agreed price is the amount due from the contractor to the materialman, and this amount is due for the whole of the materials, and not as the aggregate of the several amounts due for the respective items.

“Defendants contend that this lump price agreed upon subsequent to the sale is analogous to a balance due on an account, and not to a complete account. This analogy, however, is not apparent to the referee. Here the items sold are specified in full; the price of the whole is stated, and all credits are duly given. The statement of a balance, merely, gives no information as to the original amount of the account, of what items it consisted, or what has been paid thereon. The account presented, gives full information on all of these subjects.”

The question involved is not without difficulty, but a careful consideration of the testimony in the rec-. ord leads us to the conclusion that the materials specified in “Statement A” must be regarded as having been sold at one price for the whole, as found by the referee. The materials themselves are fully itemized on this list, and therefore the account is not objectionable as for failing to fully disclose the nature and amount of the materials. In fact, the only objection made to the account is to the lumping charge, upon the ground that the prices should be specified for the va rieras items. This would undoubtedly be a valid objection to the account but for the agreement to disregard the contract and the contract prices as to this entire lot of brick, and that plaintiff would make a reasonable price for the whole. Such, it appears, was the agreement, and in accordance therewith a total price was afterwards made and was agreed upon between plaintiff and the contractor as being a reasonable lump charge.

The statute requires the lienor to file a just and true account, but from the authorities referred to above, it is quite evident that this does not necessarily mean an itemized account as to prices. On the contrary to be “just and true” the account filed should accord with the real transaction. If various items are in fact sold at different prices therefor, a lumping price for the whole could not be a just and true account; but on the other hand if a group or lot of materials are in fact sold at one entire price for the whole, then for the lienor to undertake to itemize the prices, would be to arbitrarily apportion the entire price among the variq is items, and such an account would not be in accordance with the real transaction and would not be a ju&t and true account.

The appellant takes the position that it appears from the testimony that the items on “Statement A” were sold on open account, and that when the deliveries were complete, the rights and obligations of the parties became fixed, and that no agreement between plaintiff and the contractor made thereafter could affect the situation. This appears, however, to overlook the fact that the evidence shows that there was an agreement prior to the last delivery, to the effect that owing to the circumstances involved, the parties would abrogate and disregard the original contract and its prices, and that the plaintiff might make one entire price for the whole of the materials here in question. That a definite price was not then agreed upon, but was merely to be a reasonable price, would not seem to change the character of the ultimate agreement as to the manner in which the price was to be made, to-wit, that it was to be one entire price for the whole, instead of special charges for the various items. It is true that the parties might not have been able, after the deliveries were complete, to agree upon what would be a reasonable price; but in any event, from the testimony, it appears that they did agree that a reasonable price should be made for the whole, from which it would appear that, for the account to accord with the real transaction and to be just and true, it should show one entire price rather than to specify prices for the various items.

In this view, we are of the belief that the plaintiff’s account falls within the decisions in Mitchell Planing Company v. Allison and Grace v. Nesbitt, supra. And it would seem that the cases of Rude v. Mitchell, 97 Mo. 365, 11 S. W. 225 and Cahill, Collins & Company v. Orphans School, 63 Mo. App. 28, relied upon by appellant are not here controlling. In the former there was a lumping item for the whole contract price, together with certain lumped items for extras, with no attempt to itemize the labor and material furnished. In the latter there was á lumping charge as follows: “17 other items amounting to $4394.00.” The decision in each of those cases must be confined to the particular facts there appearing with respect to the account filed. This is likewise true of McWilliams v. Allon, 45 Mo. 573, cited by appellant, where the account merely showed a balance without stating the antecedent elements which produced the supposed result; and of Kern v. Pfaff, 44 Mo. App. 29, to which we are referred, wherein it clearly appears that a portion of the materials consisted of wall paper, which was sold at a certain price per roll.

Appellant urges that the agreement made between plaintiff and the contractor, after the deliveries were complete, to the effect that the lump price was reasonable, amounted to nothing more than an admission on the part of the contractor respecting the reasonable value, and was not admissible to bind the owner under the rulings in Grace v. Nesbitt, 109 Mo. 9, l. c. 20; Phillibert v. Schmidt, 57 Mo. 211; and Deardorf v. Eberhart, 74 Mo. 37.

In Grace v. Nesbitt, supra, the character of the declarations of the contractor do not appear. In Phillibert v. Schmidt, supra, it is held that admissions of the contractor, made after the purchases were complete, to the effect that the materials went into the building in question, were not admissible against the owner.

In Deardorf v. Eberhart, supra, it is held that declarations of the contractor that the materials were purchased for the building, although made when they were obtained, are not evidence against the owner. It is there held, however, that the price agreed upon between the contractor and the materialman is prima facie evidence of the reasonable value of the materials.

It would seem that these cases are not decisive of the question of the admissibility of the subsequent agreement here in question, to the effect that the total price was reasonable; and that the entire transaction may be shown in evidence, the total price agreed upon being merely prima facie proof of the reasonable value of the materials in question. It was not conclusive; but inasmuch as appellant produced no further proof on this score, it was sufficient to justify the referee’s finding as to reasonable value.

For the reasons given above we think the judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, Jconcur.