Landreth Machinery Co. v. Roney

ROBERTSON, P. J. Plaintiff brought this action against H. D. Cornell, H. M. Cornell and Thomas J. Roney as administrator of the estate of John Dermott, deceased, to enforce a mechanics ’ lien on account of certain machinery and supplies alleged to have been sold by plaintiff to the Cornells to be and which were used in and became a part of a certain mining plant, or mill, in Jasper county. The parties waived a jury and upon a trial judgment was entered against the Cornells for the amount of plaintiff’s claim, $456.81, with interest, and establishing a lien upon the mining plant and the leasehold interest of the Cornells in the premises upon which the plant was located. The defendant administrator, to protect his claim to the mill, has appealed. — 478 — H. D. Cornell owned a mining lease on the premises where the mill was located when the purchases were made from plaintiff, and, while the owner, thereof, on July 10, 1911 entered into a written agreement with John Dermott, as follows: “This agreement made and entered into by and between John Dermott, party of first part, of Webb City, Mo., and H. M. Cornell, Agent, of Carthage, Mo., for H. D. Cornell of second party, Witnesseth: The said party of the first part (Dermott) agrees to furnish said Cornell of second part, one complete mining mill plant bought from M. R. Lively, agent, agrees to give him (Cornell) permission to move said plant and mining machinery onto a mining lease how owned by said second party on ten acres of land now known as the Sampson Lease, near Knight’s Station in Jasper County, Mo. It is further agreed and understood that said plant and mining machinery and houses shall remain the property of said first party until the amount, $5000', paid for said mining plant, together with all money advanced by said first party for moving said plant and developing said lease by said Dermott to H. M. Cornell, agent for second party, from' the first money received from the profits of said mine, then each one of first and second parties becomes equal owners (but not partners in said mining) in plant and leases. It. is further agreed that no partnership exists now, or hereafter between first and second parties mentioned and until the full amount has been paid as 'above stated and receipts have been passed between said first and second parties showing the amounts received and paid in full.” This contract was not filed or recorded in the office of the Recorder of Deeds. The plant was moved and re-erection completed in the first part of December, 1911, and the Cornells remained in the possession thereof until after this account accrued. The items here involved were sold and deliv — 479 — ered in August and September of 1912 and the lien statement was filed and this action commenced December 21st following. The lien statement alleges that the account sets forth the work and labor done and material furnished to be used in and which were used for the repairing, remodelling and construction of the plant and then follows an itemized statement of which the following quoted therefrom is sufficient to illustrate: “Aug. 1, 1912 6 2 in. Jig Faucets $ 6.00 2 11-2 in. do 1.50 2 1 in. C. Stop Cocks 1.20 1 Box 14-16'in Crecent Eivets .85 Express Prepaid .45- 3, ‘ 15 in Iron Body Globe Valve with yoke 10.80 Carfare .25” The account has included in it'items, separately stated for carfare amounting to $3.20 and for express $5.55. When the lien statement was offered in evidence appellant objected thereto on account of the items for carfare and express and becfiuse it was said to be so indefinite and uncertain as to be insufficient as a lien statement “in that it does not show the nature of the items and contains a long list of nonlienable mingled with the other items thereof,” not designating what was claimed to be the nonlienable items. The objection was overruled and appellant excepted. The description of the items in the statement taken in connection with the allegations therein that they were used in the mill was sufficient. [Lumber Co. v. Capron, 145 Mo. App. 497, 501, 122 S. W. 1085, and Lumber Co. v. Watson, 158 Mo. App. 179, 184, 138 S. W. 690.] In the latter case it is held that trade abbreviations may be explained by parol. The account is fully itemized — 480 — and sufficiently clear to meet the requirements of the statute. The appellant requested and was refused a declaration of law “that the plaintiff is not entitled to recover in this case for any of the items of carefare or express charges.” This instruction should have been given for the reason that these items, standing alone and of themselves, do not disclose that they became a part of other items that entered into the mining plant by becoming a part of the sale price thereof. [Price v. Merritt, 55 Mo. App. 640, 645.] The court, therefore, should have given this declaration of law as there was no testimony offered. tending to prove that the Cornells agreed to pay the express charges on any of these items or that they agreed to pay the carfare for their delivery, if such is the fact. The appellant urges here that the lien statement is void for the reason' that there is included in it this small amount for which no lien should have been allowed. W-e must overrule this contention, because the items are not commingled with the items for which a lien may be given. They are items that may become a lien if the proof properly connects them with and makes them a part of such items. Under 'these circumstances their bare presence in the statement do not destroy it. [Johnson v. Barnes, 23 Mo. App. 546, 549; Price v. Merritt, 55 Mo. App. 640, 643; Uhrich v. Osborn, 106 Mo. App. 492, 494, 81 S. W. 228; Ittner v. Hughes, 133 Mo. 679, 34 S. W. 1110.] Appellant here for the first time, calls attention to items of wrencb, tape and asbestos wicking, amounting in the aggregate to $1.65, in the lien statement and also to two items of levers. The first item mentioned should not have been allowed, but on the authorities above, cited they do not affect the lien statement. As to the levers, parts of machinery being sometimes so designated, there being no specific objection in the — 481 — trial court to these items, we cannot, in the face of the trial court’s finding, say they did not enter into and became a part of the mill or machinery. It appears that at the trial of the case there was no serious contention made by defendant against any of the items, except the carfare and express. Evidently these other items have been noticed since, but as it is clear that some of them are not proper items they should be eliminated. The respondent submits here that the contract between the Cornells and Mr. Dermott, not having been filed or recorded in the office of the Recorder of Deeds, is void, as to it, under section 2889, Revised Statutes 1909. Appellant , asserts that the mill is not personal property. The provisions of the lease concerning the machinery placed thereon is as follows: “The party of the second part shall have the right to erect and maintain all necessary buildings, scales and machinery on said land for the purpose of mining, dressing, crushing, cleaning rendering and weighing ■and preparing for market all ores and minerals and other valuable substances and for no other purpose whatsoever, with the right and privilege of removing all such machinery, buildings, structures, appurtenances and scales at the expiration of this lease or at such time as second party may determine to abandon the mining of said land herein described.” The mill, under this lease, was personal property. [Richardson v. Koch, 81 Mo. 264; Springfield Foundry and Machine Co. v. Cole, 130 Mo. 1, 31 S. W. 922; Progress Press Bick and Machine Co. v. Gratiot Brick and Quarry Co., 151 Mo. 517, 52 S. W. 401; Milles v. Scottish Union and National Insurance Co., 95 Mo. App. 211, 218, 68 S. W. 1066.] The contract by which the Cornells held this property not having been'filed of recorded was, by virtue of said section 2889, void as to plaintiff, even though — 482 — it may have had actual notice thereof. [Collins v. Wilhoit, 108 Mo. 451, 459, 18 S. W. 839; Oyler v. Renfrew, 86 Mo. App. 321, 325.] The appellant cites us to the case of Gilbert Book Co. v. Shendan, 114 Mo. App. 332, 89 S. W. 555, to sustain the proposition that the contract between Cornells and Mr. Dermott does not come within the terms' of that section, but the cases, are not similar. In the Gilbert Book Co. case the decision (p. 342) was based on the theory that the transaction there involved was in the category of ordinary everyday loans of property. In the case at bar the Cornells were given the absolute and unconditional possession of the mill to move upon a lease owned by them, there to be possessed and occupied as theirs in operating a mine on their own leased premises; thus, putting it within the power of these parties to create a false impression as to their financial worth and making it possible to defeat the claim which plaintiff had a right to believe it had to a lien for material furnished to go into the mill, if we hold the transaction not covered by the statute. We think to hold otherwise would be to wholly disregard the spirit and purpose of the statute. We, therefore, hold that at the time plaintiff sold and delivered the items contained in the statement the Cornells, as to plaintiff, had the sole and unconditional ownership in the mill. There is no complaint made here on the extent of the interest in the mill covered by the judgment, neither was there any such point made in the trial court. Appellant makes reference to a hill of sale of the items involved here, which it is said plaintiff took from the Cornells, but as it was not offered in evidence,, so far as the Abstract of Record shows, we cannot consider it. The judgment will be affirmed if the respondent within ten days after this opinion is filed remits the amounts charged in the lien statement as carfare, ex — 483 — press, wrench, tape, etc., amounting to $10.40; otherwise the judgment will be reversed and the cause remanded. Sturgis and Farrington, JJconcur.