Crane Co. v. Smith

ELLISON, P. J. Plaintiff’s action is to enforce a mechanic’s lien as subcontractor against two buildings in Columbia, known as apartment houses. It recovered judgment in the trial court for the enforcement of the lien. Defendant Smith contracted with McCormick for the erection of the buildings and the latter let the plumbing to King Brothers and they purchased the material from plaintiff, who lives in St. Louis. Plaintiff marked it “Smith Job” and shipped to King Brothers at Columbia. It is contended that there was no proof that the material, though furnished to King Brothers for the buildings by plaintiff, was actually used in their construction. It was shown, clearly, that like material went into the houses, that is to say, just such bath tubs, closets, etc., as were ordered and furnished, were found in the houses, marked with plaintiff’s brand and bearing every indicia of being the identical articles that were furnished by plaintiffs. In effect, the only objection made is that no witness kept up with the eye a personal knowledge that these were the same; and as it was shown plaintiff had sold other like material to King Brothers, that destroyed [261] whatever presumption might have arisen had that fact not appeared. We do not think it can he said, as a matter of law, that there was a failure of proof on this account. It could reasonably be said that there was a weakening of proof, but not a failure, and that therefore the question was properly left to the jury. [Darlington Lumber Co. v. Harris, 107 Mo. App. 148; Badger Lumber Co. v. Muehlebach, 109 Mo. App. 646, 650; Rice v. Hodge, 26 Kan. 164; Seattle L. Co. v. Sweeney, 43 Wash. 1.] In an action to enforce a mechanic’s lien it devolves upon the plaintiff to prove the statutory requisites to a lien have been complied with. In this case there was a failure to show that a lien account had been filed. Counsel for plaintiff stated in court that it was admitted “that the lien statement herein was filed,” etc. But counsel for defendant answered this by saying that he admitted “these documents here were filed at these dates, without any admission as to what they were.” The matter seems to have been dropped at that and no lien paper or statement was identified, nor was any offered in evidence. Without the lien account the case was without a base upon which to rest. [Boland v. Webster, 126 Mo. App. 591.] The judgment will be reversed and the cause remanded. All concur.