Heltzell v. Chicago & Alton Railway Co.

Ellison, J. This action is to enforce a lien against the Kansas City, St. Louis & Chicago Railway Company, for material furnished in its construction. The Chicago .& Alton was the contractor to build it, and is now lessee thereof. Reed & Taylor were sub-contractors under the Chicago & Alton, and, as such, purchased the material .here sued for and claimed as a lien. The evidence showed that eighty barrels of the material were actually furnished, more than ninety days before plaintiffs filed their lien account. The evidence tended to show that sixty-six barrels of the material were not used in the construction of the road. The evidence further tended to show that all the material (Louisville ■cement), was furnished under one contract, at an agreed price, to be actually delivered as agreed therein. The court tried the case without a jury, and refused to enforce the lien for the sixty-six barrels and the eighty barrels mentioned above, but did render judgment for the enforcement of the balance. No instructions were asked by defendants, and the ■following were refused for plaintiff: “2. If the cement was sold to Reed & Taylor, [438] under one contract, and used in defendant’s road, then-plaintiffs acquired a lien on defendant’s road for the amount-of the same, if the last item of the account was-furnished, within ninety days next before the tenth day of October, 1878.” “3. If the cement in question was sold by plaintiffs-to Reed & Taylor, and furnished them on a running, open account, and used by Reed & Taylor in constructing said railroad, then plaintiffs acquired a lien on said railroad for all of said account, provided the last item of the account was furnished within ninety days next before-October 10, 1878.” There are only two questions presented by the record in this case, viz.: 1. Are persons who sell materials to a contractor entitled to a lien, if the materials furnished are not used in the construction of the railroad ? 2. Are persons who sell materials to a contractor entitled to a lien if the lien account was filed more than.* ninety days after such materials were furnished and delivered, by reason of the fact that other materials were.furnished and delivered by them within the ninety days, provided all was furnished under one contract, in a running open account ? The first question we answer in the negative, and the-latter in the affirmative. The case of Morrison v. Hancock (40 Mo. 561), as it is generally understood, would support plaintiff on the first proposition, but that case has never been thought to-be in accord with some of the fundamental principles of law, and was finally overruled in Deardorff v. Everhart (74 Mo. 37). While the court in this latter case expressly overrule it, as to the declarations of the contractor being evidence against the owner, it also says r “ The first instruction asked by defendants and refused, declared the law as now well settled by this court.” The first instruction (page 38), declared, that the lien was only good for such materials as were actually used in the. buildings. [439] As there was evidence in the cause tending to show that the several lots of cement were furnished under one contract, and not under different, distinct contracts, the instructions offered by plaintiffs should have been given. It was a question of fact, to be decided under the evidence. The court should not have excluded it from its consideration, as it seems to have done, by refusing the instructions. Livermore v. Wright, 33 Mo. 31; Allen v. Smelting Co., 73 Mo. 688 ; Fulton Iron Works v. Smelting Co., 80 Mo. 265. When a cause is tried before the court without a jury, instructions will generally be considered of little moment in an appellate court, except for the purpose of showing upon what theory the court below tried the case. The refused instructions would indicate that the court held the law to be that plaintiffs should file their lien within ninety days after each lot of material was furnished and delivered, regardless of whether it was all furnished under one contract or on a continuous, running account. We do not understand such to be the law. We think every inference to be drawn from the opinion in this case, reported in 77 Mo. 315, is against such view. Counsel put cases in illustration of where, on a given state of facts, hardships would result to the owners of the property affected by the lien, under the view here taken. Doubtless, hardships may occur, as stated. Such will, of necessity, be the result, wherever the policy of such liens prevails. The judgment is reversed and the cause remanded. All concur.