Campbell Glass & Paint Co. v. Davis-Page Planing Mill Co.

BROADDUS, P. J. This is a suit to enforce a mechanics’ lien on certain real property, situated in Kansas City, Missouri, for furnishing glass that went into a building erected thereon to the extent of $730. The defendant Raymond DuPay was the owner of the building at the time the material was furnished. The defendants Pinare & Tarry were the original con [477] tractors; the defendants the Davis-Page Planing Company had a subcontract with the original contractors to furnish the millwork and the glass for the building, and in turn they let the contract to the plaintiff to furnish the glass. The plaintiff furnished the glass during the latter part of December, 1905, and in January, 1906. At the same time they were furnishing glass to the Davis-Page Company who were engaged on a number of other contracts. The general contractors, Pinare &' Tarry, paid the Davis-Page Company on February 2, 1906, $674.40, the balance which they owed them, and ■on the same day the latter turned, over $500 of that money to the plaintiff. The plaintiff during the progress of the work received from the Davis-Page Company various sums of money, viz.: On December 28, 1905, $300; on January 13, 1906, $300; on February 2, $500; and on February ■24, $554.94, in the aggregate $1,654.94. Thereafter the Davis-Page Company went into bankruptcy owing the plaintiff $1,461.91 for material furnished on various contracts including a part of the one in question. At the trial the court refused to permit the original contractors, Pinare & Tarry, to show that the $500 payment :made by the Davis-Page Company on February 2, 1906, ■was money which- came from Pinare & Tarry on the •contract they had for the building on Grand avenue upon which it was seeking to enforce its lien. When the $500 was paid by the Davis-Page Company the plaintiff credited that company on the part of its indebtedness then due, which included no part of the debt in controversy. There was no direction from the latter to apply it on any particular indebtedness. The debt sued on was a specific charge against the Grand avenue building. The court gave specific instruction that the jury return a verdict for $730 with interest, if they find that the plaintiff is entitled to enforce its lien against the [478] real estate described. The jury returned a verdict in accordance with the instructions upon which judgment was rendered from which defendants appealed. The contention of the appellants is that as plaintiff mixed the money received from all the different contracts and kept no separate account of each job as to payments he was not entitled to secure a mechanics’ lien for unpaid balance because it did not know to which job it belonged. In support of this view of the case we are referred to the case of Gauss v. Hussman, 22 Mo. App. 115. But it has no application to the question whatever.. That applies to a case where there was such a mingling of items for which the law gave no lien with those for which a lien may be had that they could not be separated upon a mere inspection of the account. There is no complaint that in this case there was any such mingling of items. The argument is, however, that if there can be no lien where there is such a commingling of items it ought to be true, also, that where one furnished materials for several jobs and is receiving during the time money from all and does not know from which job it comes but mixes and mingles it all together and is unable to separate it, no lien should be allowed. We are not impressed with the soundness! of the argument. If plaintiff’s dealings had been with different contractors the accounts with each should have been kept separate. We do not think, however, where the dealings were with a single contractor who had different contracts going on at the same time that he was bound to ascertain from what particular contract the contractor realized the money with which he made payments. No such burden is imposed by the statute. He was not required to keep an account of the money transactions of his contractor and the original contractor, or the owner of the building. He had no lien on any particular fund. The other contention of defendant is: “A payment [479] by the owner or contractor to a subcontractor, without any direction as to its application, the Iuav will apply it to those items for which the subcontractor has a lien right, and if suit is brought for the full amount claimed on the lien, such payment should be deducted from the total amount claimed.” To support this proposition we are cited to the case of Nelson v. Withrow, 14 Mo. App. 270. And such is the holding in that case.- In that case, however, the owner of the building had paid seven hundred dollars to the subcontractor, who was seeking to enforce his lien, and as it turned out that this sum was greater than the amount for which he was entitled to a lien the court directed that the payment be directed first to its discharge, instead of applying it to that part of the account for which no lien existed. - We do not think the facts of the case- bring it wdthin the rule applicable to this one. In Gantner v. Kemper, 58 Mo. 567, a case where there were different debts as in this and payments made but not sufficient to discharge all such debts the court held: “The effect of such payments would depend upon the appropriation made by Williams (the debtor) at the time of making them, or if no application were made by him, then upon the appropriation made by plaintiff at the time of receiving them; and if no appropriation was made by either, then the law would apply them as the justice and equity of the case might require.” And such seems to be the established law of this State. [Goetz v. Piel, 26 Mo. App. 684; McCune v. Belt, 45 Mo. 174; Brown v. Brown, 124 Mo. 79; Lumber Co. v. Christophel, 59 Mo. App. 80.] In the latter case it is directly held: “Payments made by an original contractor to a subcontractor, without "any application thereof by either party, will be applied to the oldest items of the account.” Under the undisputed facts the court was justified [480] in directing a verdict for the plaintiff. Affirmed. All ■concur.