Kasper v. St. Louis Terminal Railway Co.

GOODE, J. This is an action to enforce a lien against the roadbed and property of the St. Louis Ter--minal Railway Company, for manual and team labor furnished in the construction of the road. The petition contains nine counts, the first of which is to recover for labor done by the respondent, Charles Kas-per, in person, and the other eight counts for the labor [326] of other men who aided in making the roadbed and assigned their demands to Kasper after their lien accounts had been filed. The men, besides Kasper, whose work enters into this action are W. J. Jenkins, Edward Chiv-ington, M. A. Blount, J. P. Davis, M. B. 'Walter, D. H. Coffee, John Brady and William Beebe, some of whom did only manual labor while others furnished wagons and teams. They all worked under a subcontractor by the name of Allen Poynter, who was himself a subcontractor under Michael Hanick, who had a contract with the appellant company for grading its roadbed. The service of those hands was rendered on different days from early in March to May, 1902, and that they all did the work and earned the wages embraced in the petition, was proven beyond controversy.' Kasper’s lien, however, was filed too late, so judgment was given in favor of the appellant on the first count of the petition but in favor of the respondent on all the other counts, the total amount of the judgment being $649.16, which sum was declared and established as a lien against certain property of the railroad company described in the judgment. An appeal was prosecuted to this court. One point raised by the appellant is that the petition discloses that the purpose of the action was to obtain a personal judgment in favor of the respondent against the railroad company instead of a judgment to enforce a lien against the railroad company’s property for the wages Poynter, the subcontractor, had failed to pay Kasper and the other men above mentioned. The petition describes the portion of the roadbed of the railroad company on which the work was done, states that Hanick had a contract for the grading, that Poyn-ter had a subcontract under Hanick for part of the route, and that the above-named laborers did certain specified work under Poynter. The petition also states that in ninety days after the completion of the work all the workmen filed in the office of the clerk of the cir [327] cuit court of St. Louis county just and true accounts of their claims and that within said ninety days copies of said accounts were served on the railroad company. At the close of each count of the petition is a prayer for judgment against the railroad company and that a lien be enforced against its property for the amount of wages shown to be due, as provided by article 4, chapter 47, of the Revised Statutes of 1899. A pleading like that is certainly a good one to enforce a lien for labor and material, and it is of no consequence that the prayer for relief demands a judgment against the railroad company. The allegations in each-count state all that is necessary to give the respondent the benefit of the lien statutes. Another point is that the petition fails to aver that notice of the indebtedness of the lienors was given to the railroad company, within twenty days after the performance of the work, while the proof fails to show notice was given within that time. This contention is founded on a misapprehension of the statutes in regard to the enforcement of a lien against a railroad company for labor and material furnished in the construction of its road. Those statutes provide that a person claiming such a lien must file a just and true account of his demand in the office of the circuit clerk of any county through which the railroad is located, within ninety days after the completion of the work, and must serve a copy of the account on the corporation owning and operating the road within said ninety days. R. S. 1899, sec. 4241. Those provisions are both alleged and proven to have been complied with in this case. Lien accounts were filed in the office of the circuit clerk within ninety days after the work was finished by all the lien-ors except Kasper, who lost his claim because he filed too l'ate. The notice required to be given within twenty days has nothing to do with the enforcement of a lien, but is the condition on which a laborer who does work on a railroad under a contractor and is not paid by the [328] latter, may sue the company for his wages and recover a personal judgment against it. R. S. 1899, sec. 1057. This action is not one of that kind and no personal judgment was rendered against the railroad company, but simply one declaring a lien on its property. The lien accounts filed by the laborers are attacked because they do not contain certain credits which should have been and were allowed the railroad company in the judgment. Those credits are for the board of the workmen and the feeding of the teams which, by their contracts, were to come out of the wages Poynter agreed to pay. Six of the lien accounts, to-wit, those of Chiving-ton, Blount, Jenkins, Walters, Coffee and Beebe contain credits for board. Those of Kasper, Davis, and Brady do not; but as stated, Kasper was nonsuited as to his demand. Davis testified that he got neither board nor feed and, therefore, gave no credit for them. Brady testified that he got feed but did not know to what amount, but it was approximately $23. Thus so far as-the evidence shows, the only account that was imperfect was Brady’s and his did not embrace credit for board or feed because he did not know what credit to allow. We think his account was in compliance with the mechanic’s lien law in respect to being just and true, although the credit was left off. Such trifling omissions are not fatal unless they occur from a fraudulent motive. Greenwood v. Harris, 8 Mo. App. 603; Uthoff v. Gerhard, 42 Mo. App. 256; Hydraulic Brick Co. v. McTaggert, 76 Mo. App. 347; Ittner v. Hughes, 133 Mo. 679. It seems Brady got the feed on an order given by Poynter to C. E. Seymour, time-keeper for Poynter, and that he was unable to get a statement of the cost of it. The absence of the credit from the lien account was neither covinous nor harmful. ' Some of the men worked for thirty-five cents an hour for a while and afterwards their wages .were raised to forty cents an hour; appellant contends that [329] tMs advance in their wages constituted a new contract between them and their employer and that no recovery can be had for the wages at the first rate unless lien accounts were filed within six months after they ceased to work at that rate — that filing them, within that period after all the work was done, only makes the lien good for the wages under the increased rate. Manifestly the increase of wages created no new contract in the sense contended for by the appellant and this point is frivolous. The judgment is affirmed. Bland, P. J., and Bey-burn, J., concur.