Hilliker v. Francisco

1. Mechanic’s Lien: owner may appeal from judgment against iris property. An owner, who has been made party to a mechanic’s lien case, is entitled to appeal from a judgment in favor of a sub-contractor subjecting his premises to the lien. 2. Account Filed for Mechanic’s Lien. When it appears that the owner was apprised of the terms of the contract between the principal and the sub-contractor, an account filed by the latter for “Junction City stone furnished for First National bank building, as per contract, and labor setting same $7,790” will be held a sufficiently specific statement of his claim for a mechanic’s lien. 3. Partnership: individual contract : evidence : parties to suit. A contract running in the name of “R. W. H. and J. F. Iv. of the firm of H. & K.,” though signed in the name of the firm, is the contract of the individual members and not of the firm, and evidence to prove that a third person was also a member of the firm is inadmissible in a suit on such contract; and such third person is not a necessary or proper party to such suit. 4. Partnership Assets: individual debts'. A partner has no right to appropriate the assets of his firm to the payment of his individual debts, nor to the payment of the individual debts of himself and his co-partner, unless they are also debts of the firm, 5. Measure of Sub-Contraetor’s Eight of Eecovery. If there is no evidence to show that the materials furnished by a sub-contractor are worth less than the price agreed on between him and the principal contractor, he is entitled to a lien for this agreed price regardless of the price that may have been fixed by the contract between the owner and the principal contractor. 6. Surprise. That an attorney is surprised by the rulings of the court or by instructions given, is no ground for a new trial.

Appeal from. Jackson Circuit Court—IIon. Samuel L. Sawyer, Judge. This was a suit to enforce a mechanic’s lien brought by R. ~W. Hilliker and Joel F. Kinney, as partners doing business under the name and style of Hilliker & Kinney, against Francisco, Switzer & Jeffers and the First National Bank of Kansas City. The bank was the owner of the building sought to be charged with the lien; the other defendants were contractors for its erection, and plaintiffs were sub-contractors for the stone-work. The contract sued on ran in the name of “ R. W. Hilliker and J. F. Kinney, of the firm of Hilliker & Kinney,” as parties of the first part, and was signed “ Hilliker & Kinney.” The first item of the account filed with the clerk of the circuit court, for a mechanic’s lien, was as follows : “ To Junction City stone furnished for First National Bank building, as per contract, and labor setting same ..........$7790 00” The petition was in the usual form. The bank filed a separate answer denying the allegations in the petition, and alleging that there was a defect of parties plaintiff, and in another count set up a settlement between appellant and one of plaintiffs, Joel F. Kinney, of all matters in controversy in the suit. Evidence was offered to prove the settlement. It tended to show that the consideration for the settlement was a credit for $1,800 on a judgment held by the bank against Kinney, and a receipt for $1,400 in full discharge of an account claimed by the bank to be due to it from Hilliker, Kinney and one Phelps, for which a suit was then pending. The counsel for plaintiffs objected to the evidence as incompetent and irrelevant, because the indebtedness appeared to be that of other parties than the plaintiffs. During the argument on the objection the court suggested that it would be necessary to show that Phelps was a partner with Hilliker and Kinney in the contract sued on, before the settlement could be made available as a defense; and if 'such partnership could be shown, the settlement would be immaterial, as in that case there would be a defect of parties plaintiff, and plaintiffs could not recover. Counsel for both parties acquiesced in the suggestion as to the defect of parties plaintiff, and defendant then abandoned the count in his answer, setting up the settlement, and continued the trial of the ease, introducing evidence to show that Phelps was a partner in said transaction, and on that point only. The court, at the instance of the plaintiff*, gave the fol- * lowing among other instructions: 4. It is wholly immaterial in this case, and does not affect the plaintiffs’ right to recover herein what the terms of the contract were between the First National Bank of Kansas City and Francisco, Switzer and Jeffers for erecting the bank building, or what price said .Francisco, Switzer and Jeffers were to receive for the same or the stone work put into said building. 7. If the jury find from the evidence that Francisco Switzer and Jeffers, while the work of building the building described in the petition was going on, executed the written contract offered in evidence by plaintiffs in this case, the defendants are estopped from denying that the contract sued on was made by them with Hilliker and Kinney as partners under the firm name of Hilliker & Kinney, and from asserting that Cicero Phelps had any interest in said contract, and in that ease it makes no difference whether Cicero Phelps was at the time of making the contract sued on, or during the progress of the work, became a partner with Hilliker and Kinney in the stone business or not. Upon the instructions the jury found for plaintiffs, and judgment was entered -against the contractors and for the enforcement of the lien against the building. There was no judgment against the bank by name. The bank alone appealed. 1st. Testimony as to the settlement made between the appellant and Kinney was competent and relevant. Kinney had a right to make the settlement, whether the indebtedness to appellant was that of Hilliker and Kinney, or Hilliker, Kinney and Phelps, for they were severally liable to the appellant. Austin v. Felcmd, 8 Mo. 309; Rent v. Rogers, 24 Mo. 306 ; Mortland v. Holton, 44 Mo. 58. At the suggestion of the court, acquiesced in by plaintiffs’ counsel, appellant abandoned a good defense, relying on proving that Phelps was interested as a partner in the transaction, which is the foundation of the action, and tried the cause on this theory. "When appellant had no opportunity to be heard on the third defense, its counsel wei’e first inforxned that what it had been led by the court to believe was a good defense was no defense at all. . This operated a surprise on appellant and entitled him to a new trial. Morrow v. Hatfield, 6 Humph. 108; LeFleming v. Simpson, 1 Man. & Ry. 269 ; Boyce v. Mooney, 40 Mo. 104. 2nd. The doctrine?' of estoppel can not be made to apply to the case. Appellant xxever made any admission inconsistent with the evidence offered; never made any admission to plaintiffs at all, axid did not mislead them in any way. Newman v. Hook, 37 Mo. 207. 3d. Phelps was a necessary party to the suit. Wag. Stat. 999 § 2 ; Id. 909 § 8, 1000 § 4, 1001 § 6. A dox’mant partner is a necessary party under the code. Secor v. Keller, 4 Duer 416; McKenzie v. L’Amoureux, 11 Barb. 516; Barber oxx Partnei-s, 426, 427 ; Parsons on Partnership, 428; Wilson v. Wallace, 8 S. & R. 53; Bailey v. Inglee, 2 Paige, 278. Eor defect of parties plaintiff all may demur (or answer if defect does not appear on face of pleading.) Scranton v. The Bank, 33 Bax’b. 527; 30 IIow. Pr. 281; Howard v. McKowen, 2 Brown, Penn. 150. The mechanics’ lien law does not change the relation of parties to contracts. Rockwood v. Walcote, 3 Allen 458. 4. There was no cause of action stated in the petition. The account filed was not a just and true account within the meaning of the statute. What purports to be an account, is not such, but a price agreed upon for the work. Russell v. Bell, 44 Pa. St. 47; Lee v. Burke, 66 Pa. St. 336 The bank was not a necessary party to the suit, and there being no judgment against it, it could not take an appeal; the judgment was against the contractors. Schaeffer v. Lohman, 34 Mo. 68; Acts 1856-7 p. 668; Wag. Stat. 908 § 3; Wibbing v. Powers, 25 Mo. 599 ; Ashburn v. Ayres, 28 Mo. 75 ; Wescott v. Bridwell, 40 Mo. 146 ; Miller v. Faulk, 47 Mo. 262; Horstkotte v. Menier, 50 Mo. 158. It is the duty of the original contractor to protect the property against liens, and if he fails to do so, the owner has his remedy against him; but cannot defend against the lien. 2. The written instrument claimed to be the settlement which the First National Bank had from Kinney bearing date Nov. 12, 1874, and which was u.sed upon the hearing of the motion for a new trial, shows upon its face that the claims pretended to have been paid by the settlement, were not against Hilliker and Kinney at all; but were claims against Phelps and Kinney individually, and Hilliker, Kinney & Phelps. Ackley v. Staehlin, 56 Mo. 558; Flanagan v. Alexander, 50 Mo. 50; Price v. Hunt, 59 Mo. 263. 3. There was no ground for a new trial on the score of surprise. State v. Schar, 50 Mo. 393.