Naughton & Dolan Slate Co. v. Nicholson

BLAND, P. J. — 1. In McDonnell v. Nicholson, 67 Mo. App. (St. L.) 408, a suit by a subcontractor under Nicholson Brothers to do the plastering on this same building, it was held, under substantially the same evidence as was offered by plaintiff on the trial of the case at bar to prove the agency of Charles Stevens, that the evidence was sufficient to prove such agency; hence, this question need not be discussed in this opinion. 2. The point relied on by respondents as justifying the court in taking the case from the jury is that the lien account of plaintiffs was not filed within four months after the completion of all the work done under its contract with Nicholson Brothers. In support of this contention it is insisted that the work done on May 27 to finish the roof of the house was a mere subterfuge and done for the purpose of enabling plaintiffs to file a mechanic’s lien, and that at that date the contract between Nicholson Brothers and Stevens had ceased to exist. The evidence of P. S. Naughton, uncontradicted by any witness, does not tend to show that the work done on the roof on May 27 was for the mere purpose of enabling the plaintiff to file a mechanic’s lien, on the contrary it tends to show that the roof had been left in an incomplete condition; that the carpenter work on the dormer windows was in such an unfinished state that the slating around those windows could not be put on at the time the other work was done and that plaintiff had no access to the house to complete the work on the roof before the day the work was done. [336] There is no evidence tending to prove that plaintiff knew or had been informed that the original contractors had entirely abandoned work on the house. It is unquestionably the law that if on May 27 the contract between Nicholson Brothers and Stevens was not in existence, that is, that on or prior to that date it had been wholly abandoned, and plaintiff had notice of the fact, or notice of such facts as should have put it on inquiry, the work performed on that day by plaintiff was not done under its subcontract with Nicholson Brothers and will not serve to bring the last item of its account against Nicholson Brothers down to that date. Gerard B. Allen & Co. v. The Frumet Mining & Smelting Co., 73 Mo. 688; Henry v. Mahone, 23 Mo. App. (K. C.) 83; Kearney v. Wurdeman, 33 Mo. App. (St. L.) 447; Henry v. Rice, 18 Mo. App. (K. G.) l. c. 514; Lyon v. Railroad, 127 Mass. 101; Badger Lumber Co. v. Knights of Pythias, 157 Mo. 366. The evidence does not show the precise date when the new contract was made by Stevens with Smith Brothers, but it does show that Smith Brothers were at work on the building prior to May 27, the date of the last item in plaintiff’s lien account. There is no evidence to show that plaintiff knew or had notice of the change in contractors. It had been informed by one of the Nicholsons several months before, that they (Nicholson Brothers) had had trouble with the architect and knew as a fact that the work had been abandoned and the house boarded up in February previous. This was sufficient to have put a prudent man on inquiry. On May. 27, plaintiff may have supposed that the contract of Nicholson Brothers was still in force, but on account of the information it had, it was bound to know that it was in force in order to charge the item for work on that day in its lien account. The contract of Nicholson Brothers having been wholly abandoned prior to May 27, the item of that date can not serve to bring the lien account within the statutory period in which it might have been filed as a lien. [337] We conclude that the lien account was filed out of time, and the judgment is affirmed. Barclay and Goode, JJ., concur; the former on the ground that there was evidence to support the judgment on the theory that the lien was filed too late.