Reitz v. Ghio
Reitz v. Ghio
Opinion of the Court
This action was brought by a subcontractor to recover the sum of $1,100 from Gerhard & Son, the principal contractors, for work and labor done and materials furnished to them; and also seeking to-enforce a mechanics’ lien for such work, labor and. materials, against the house of the defendant Ghio. Judgment was rendered by default against Gerhard &. Son, and Ghio defended, contesting the right of the plaintiff to a mechanics’ lien against his house. The-cause was tried by the court sitting as a jury. No-instructions were asked or given. The court took the-cause under advisement, and finally rendered a judgment in favor of the defendant Ghio, denying the right of lien ; to reverse which judgment the plaintiff prosecutes this appeal.
No errors are assigned in respect of any rulings, upon the admission of evidence ; but the assignment of' errors, if such it can be called, is merely tantamount to-a request that we should retry the case upon the record. This we cannot do in any such case, it being a case at law, unless the state of the evidence is such as to exhibit the-extreme case stated in Lionberger v. Pohlman, 16 Mo. App. 392, of the trier or triers of the facts refusing to believe evidence which is clear, unimpeached and subject to no circumstance of suspicion. Such is not the-case here. The record discloses two good reasons justifying the court in finding as it did.
I. The plaintiff performed work and labor, and furnished materials to the principal contractors, the-defendants, Gerhard & Son, on several different buildings, and stated the accounts separately as charged on one side of his ledger, _ but entered all credits as credits on general account on the other side of the ledger. Nor-
II. The lien paper is fatally defective. It embraces three different accounts : An account for cut stone, amounting to $292; an account for hauling stone, amounting to $237, and to this the plaintiff adds, not an account showing an indebtedness of Gerhard & Son to plaintiff, but an account of another firm-, Milne & Gordon, made out on their printed bill-head against plaintiff for granite furnished to the residence of the defendant Ghio. These items are not footed up, and no general amount is carried out, nor is a statement of the amount due contained in any part of the lien account. This brings the case within the principle, declared by this court in Nelson v. Withrow, 14 Mo. App. 277, that “the owner of a building has the right to know from the account filed the amount of the lien claimed, in order that by paying or tendering the amount he may discharge the property of the incumbrance.” This principle must be of especial application in cases arising between the owner and a subcontractor, where the owner is not presumed to know what is due the subcontractor, that being a matter between him and the-principal contractor. We, therefore, take it that, leaving
The judgment will acordingly be affirmed.
Reference
- Full Case Name
- John Reitz v. J. M. Ghio
- Cited By
- 2 cases
- Status
- Published