57 MO 211 - Philibert v. Schmidt

Adams, Judge,

¶1delivered the opinion of the court.

¶2This was an action under the mechanic’s lien law, brought on an account for materials alleged to have been furnished the defendant, Anton Moeller, as contractor for building a hotel for the defendant, Schmidt, in the City of Jefferson, in the State of Missouri. The defendant, Moeller, having become bankrupt, A. W. Ewing, his assignee, was'substituted as defendant.

¶3There were separate answers by the defendants putting in issue the material allegations of the plaintiff’s petition.

¶4Upon the trial, the plaintiff introduced evidence tending to prove his account and lien, and conducing to prove that the materials were furnished under Moeller’s contract for building the hotel. Among other evidence, was that of Schmidt’s promise to pay the amount of plaintiff’s lien after it was filed.

¶5After the close of the evidence the court at the instance of the plaintiffs, gave an instruction to the effect, that if the materials were furnished to the contractor, and were used in the building, the jury must find for the plaintiffs, if they find that the proper notice, etc., was given.

¶6This instruction was objected to, and, standing alone, it might have been objectionable. But the court, at the instance of the defendants, gave an additional instruction presenting their views of the case, which, together with the instruction given for the plaintiff, placed the whole case fairly before the *212jury. Other instructions were asked by the defendants,which were refused. As the case, however, was fully and fairly preseuted to the jury by the instructions above referred to, it is unnecessary to pass upon the refused instructions.

Lay cfo Belch, for Plaintiffs in Error.

I. In this case the letters were written and the declarations made long after the materials had been purchased and used. Schmidt was no longer the owner’s agent, and his letters were inadmissible for' any purpose. (Morrison vs. Hancock, 40 Mo., 561.)

Ewing & Smith, for Defendants in Error.

I. Contractors declarations are admissible against the owner, as to the materials which have been received or the amount which may remain due. (Dickerson College vs. Church, 1 Watts & Serg., p. 462.)

II. The promise of Schmidt to pay plaintiff’s account was admissible in evidence. (Landis vs. Roger, 59 Penn. (State), 95; Morrison vs. Hancock, 40 Mo., 561.)

¶7The defendants also objected to a letter that had been written by Moeller to the plaintiffs, and the other admissions made by Moeller, acknowledging the plaintiff’s account to be just. These admissions were certainly evidence against Moeller and his assignee in bankruptcy, to establish the plaintiff’s demand against them.

¶8Upon the whole case I think the judgment was for the right party, and I see no good reason to disturb it.

¶9Judgment affirmed.