Van Stone v. Stillwell Bierce Manufacturing Company

This was an action under a statute of Missouri to have a mechanic's lien declared and enforced against certain described property, consisting of a mill and grounds, situated in Marshall, in that state. It was originally brought in one of the state courts by the Stillwell & Bierce Manufacturing Company, an Ohio corporation, claiming under an assignment from one Fred. J. Schupp, against the plaintiff in error, C. H. Van Stone, and was subsequently removed into the federal court, on the ground of diverse citizenship of the parties. The amended petition, framed under the code practice of the state, contained three counts. The first was a declaration of a written contract between Schupp and Van Stone, dated January 16, 1885, by the terms of which the former agreed to construct in the elevator building of the latter, in Marshall, a flouring-mill, on the improved roller process, with a capacity of making from 50 to 75 barrels of flour a day and of grinding from 300 to 400 bushels of corn into meal in a day of 24 hours. The contract further stipulated that the mill should be constructed in a good and workman-like manner, and, when completed, should be up to the standard of other mills, and particularly a certain mill known as the 'Aulville Mill,' at Aulville, in that state, and should be satisfactory to one Frank Summerville, whose opinion in that respect was to be binding on both parties to the contract; and that the materials used in its construction, with the exception of such as were on the premises, should be furnished by Schupp, who was also to be at all the expense of such construction, the mill to be completed and ready for use before August 1, 1885. The price agreed upon for the construction of the mill was $8,200, $500 to be paid April 1, 1885, $500, May 1, 1885, $1,200 upon the delivery of the mill, and for the remainder, $6,000, Van Stone was to give to Schupp his three equal promissory notes of $2,000 each, due in one, two, and three years, respectively, with interest at 7 per cent. per annum, payable annually, and which were to be 'well secured' on real estate, the sufficiency of such security to be determined by one William H. Wood, of Marshall, or, in the event of his failure to act, by J. H. Cordell, of the same city. The petition further alleged that Schupp complied fully with the terms of the above contract, except as to the time when the mill was to be completed, the machinery for grinding corn not working satisfactorily at that time, but that, upon this point, the defendant by an instrument in writing waived his right to demand a full compliance, and agreed to pay for the entire work when that portion of it was completed, at the same time accepting all that part of the work intended for making flour, and that afterwards, to-wit, on the 16th of October, 1885, the mill was completed to the satisfaction of said Summerville, and was accepted by the defendant, and was turned over to him, he waiving all exceptions on account of its not having been completed within the time specified in the contract, and at various stated times previous thereto having paid thereon a total sum of $3,044.12. It was then alleged that the defendant failed and refused to pay the remainder due on the contract, or to execute his notes therefor, as agreed upon; whereupon Schupp took such proceedings under the Missouri statute as entitled him to a mechanic's lien on the mill and the grounds on which it was situated, for the balance due him on the contract, to-wit, $5,392.53; and that Schupp afterwards, for a valuable consideration, assigned and transferred to the plaintiff all his accounts against the defendant arising out of the contract or in any wise connected with it, including said mechanic's lien, wherefore plaintiff became entitled to recover from the defendant said sum of $5,392.53, with interest, etc., and also to a mechanic's lien upon the property referred to; for which amount it prayed judgment, and asked that the same he made a lien upon the property aforesaid, as provided by law. The second count was in the nature of a count in assumpsit for labor performed, materials furnished, money paid out, expended, etc., and sought a recovery against the defendant for the value of the work and labor performed and material furnished by Schupp in the construction of a mill for the defendant, in a like amount as in the first count stated, and asked an enforcement of a mechanic's lien upon the mill property, as was done in the first count. The third count was for extra labor and materials furnished by Schupp in building a mill under a contract with the defendant, and like relief was asked. The answer admitted the contract declared upon in the first count, but denied every other allegation of the petition, especially those respecting the performance by Schupp of his part of the contract, and the waiver by defendant as to the time of the completion of the mill; and claimed damages for the failure of Schupp to complete the mill within the time specified in the contract, in excess of the amount claimed by the plaintiff to be due thereon. A replication was filed, and the case proceeded to trial before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for the sum of $5,898.85, including interest, which judgment was made a lien upon the mill property, under the provisions of the state statute. To reverse that judgment this writ of error is sued out.

There was no assignment of errors annexed to and sent up with the record, as provided by section 997 of the Revised Statutes, but in the brief of counsel for plaintiff in error the following assignment occurs: '(1) The court erred in admitting any evidence in the case. (2) The court erred in submitting the case to the jury, and entering up a judgment upon the verdict. (3) The court erred in refusing to sustain the demurrer to the evidence offered by plaintiff in error. (4) The court erred in overruling the motion for new trial asked by plaintiff in error. (5) The court erred in overruling the motion in arrest of judgment, asked by plaintiff in error. (6) The court erred in entering up judgment recognizing and enforcing a mechanics' lien. (7) The court erred in construing Exhibit A (which is letter of Van Stone to Schupp, found at page 16 of printed record) to be a waiver of the time in which the mill was to be completed. (8) The court erred in overruling the demurrer to the evidence.'

S. M. Stockslager, for plaintiff in error.

Mr. Justice LAMAR delivered the opinion of the court.