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Where the undisputed evidence shows what the contract for materials was, and that the materials were furnished according to the contract, the question whether the contract is entire or separable is one of law, which may be reviewed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]

3. MECHANICS' LIENS (§ 132*) RIGHT TO LIEN-ENTIRE CONTRACT FOR MATERIALS.

Under Rev. St. 1909, § 8212, providing that materials for which a lien is claimed must be furnished under a contract with the owner, a materialman is entitled to a lien for all items sold under one contract, although they were furnished at different times, and rendered necessary by different conditions.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. &$ 190, 192-207; Dec. Dig. § 132.*]

4. MECHANICS' LIENS (§ 132*)-CLAIM-TIME FOR FILING "RUNNING ACCOUNT."

A running account, which is a mutual account between buyer and seller, in which was charged from time to time, as ordered, the materials sold, and on which was entered the various credits to which the seller was entitled, by reason of payments made and articles returned, is deemed an entire account, and, for the purpose of fixing the time for filing the account to perfect a mechanic's lien, each item of the account relates to the last item deliveredquoting Words and Phrases, p. 6277.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*

For other definitions, see Words and Phrases, vol. 7, pp. 6277, 6278.]

5. MECHANICS' LIENS (§ 132*)-CONTRACT FOR MATERIALS-ENTIRE CONTRACT.

The fact that materials sold under separate and distinct contracts were all charged in the form of a running account would not make them lienable under one contract; but, unless there is evidence of a separate contract for the different items, the account would be taken to be a running account under the contract out of which the account originally grew.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]

6. MECHANICS' LIENS (§ 132*)-CONTRACT for MATERIALS-ENTIRE CONTRACT.

Where materials were furnished as required without a specific agreement as to the time within which they were to be furnished, and all formed parts of a connected whole in the building for which they were furnished, and there was nothing to indicate that the work was completed, so as to lead the materialman to believe the account was ended, and no further material required, he is entitled to a lien as under the entire contract.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]

7. MECHANICS' LIENS (§ 132*)-CONTRACT FOR MATERIALS-ENTIRE CONTRACT.

Where it is specially or impliedly agreed between the parties that an account is to be

kept open as one continuous transaction, the fact that the furnishing of articles may have extended over a long period, or that several months elapsed between two of the items of the account, does not prevent a lien for all the items as being furnished under one contract. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]

8. MECHANICS' LIENS (§ 132*)-Contract for MATERIALS-ENTIRE CONTRACT.

Materials furnished after the substantial completion of a building, but necessary to the comfortable and proper use thereof, and not furnished for the mere purpose of preserving a lien, are sufficient to preserve the right to a lien for all the materials, where the rights of third parties have not intervened.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]

9. MECHANICS' LIENS (§ 132*)-Contract for MATERIALS-ENTIRE CONTRACT.

A lumber company orally agreed to furnish the material for the construction of an ice-making and meat-packing plant; no reference being made to the plans or specifications. A list of the materials was furnished; but it was understood that it was not complete, and that other materials would be ordered as needed. As the materials were furnished, they were charged to the ice company, and occasionally payments were made on the account. Prior to the completion of the plant, the company moved into it, and began operations; but the lumber company continued to supply materials for the construction. Thereafter the ice company suspended packing, but continued to make ice, and for five months no materials were called for; but the account was not closed, although the lumber company requested that payments be made. The ice company leased the packing portion of its building to another company, which desired the finishing of certain incomplete rooms in the building. The packing company ordered the materials therefor from the lumber company; the materials being the same as would have been required under the original plans. No new contract was expressly made between the two companies, and the charges for materials were entered upon the existing account. Held, that the furnishing of such materials was under the same contract, and not under a new one, and the lumber company had a right to a lien for all materials furnished under a claim filed within six months of the time of the furnishing of the last items.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. &$ 190, 192-207; Dec. Dig. § 132.*]

10. MECHANICS' LIENS (§ 132*)

CONTRACT

FOR MATERIALS-ENTIRE CONTRACT. The fact that at the time the last materials were ordered the packing company, without any demand by the lumber company, paid cash for other materials which were not shown to have been used for the completion of the original building does not indicate that a new contract was entered into for the materials to be used in finishing the building.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*1

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[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]

12. MECHANICS' LIENS ($ 132*) — ACTIONS TO ENFORCE-WEIGHT OF EVIDENCE-SEPARATE CONTRACT.

ized to contract for the materials, but merely | count continues down to and including May to order them. 3, 1909. From this date until October 9, 1909, there are no items charged, and no materials were sold. But on this date an item of 4,000 feet of insulating paper was sold, and on October 12, 1909, an item of 16 pieces of 2-inch by 6-inch No. 1 yellow pine lumber, 22 feet long, was sold to the company, and used by it in the building. The lien claim was filed January 29, 1910. If the two items above mentioned were sold under a separate and distinct contract from that under

A remark by the manager of the lumber company, when told by the carpenter that the materials needed for the alterations were to be cash, that the ice company owed quite a bill, and his firm did not want to extend it, was not a demand that a different contract be made.

[Ed. Note. For other cases, see Mechanics'

Liens, Cent. Dig. &$ 190, 192-207; Dec. Dig. which the rest of the account was sold, then,

132.*]

13. MECHANICS' LIENS (8 309*) RIGHT TO LIEN-VALIDITY OF CLAIM.

of course, the account did not accrue on October 12, 1909, but accrued on May 3, 1909, which was more than six months prior to Where a materialman unintentionally the filing of the lien claim. If, however, the charged more than the agreed price on some of the items furnished, and those items were last items were sold under the same geneasily separable from the others, that fact does eral contract as the others were, then the not defeat his lien for a judgment rendered in lien was filed in time, and should be enforchis favor for materials furnished, which judged. So that the only question in the case ment was less than his claim, since it would be presumed that the court excluded the amount is whether or not the materials bought and of the overcharge. used in October, 1909, were furnished under [Ed. Note. For other cases, see Mechanics' such circumstances as to show they were Liens, Cent. Dig. §§ 642-650; Dec. Dig. § 309.*]| Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by the Badger Lumber Company against the W. F. Lyons Ice & Power Company and others. Judgment for plaintiff for the amount of his claim, but denying a right to a mechanic's lien therefor, and plaintiff appeals. Reversed and remanded, with directions to enforce the judgment as a lien. Botsford, Deatherage & Creason, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent W. F. Lyons Ice & Power Co. Bowersock, Hall & Hook, of Kansas City, for respondent Fidelity Trust Co., Trustee.

TRIMBLE, J. Suit to enforce a mechanie's lien for lumber and materials sold by appellant to the W. F. Lyons Ice & Power Company for the purpose of, and used in, constructing an ice-manufacturing and meatpacking plant. A jury was waived, and the case was tried by the court. Appellant obtained judgment for $2,918.45 on the account sued on, but was denied a lien.

It is clear, from the finding of facts preserved in the record, that the only reason a lien was refused was because the court thought the last two items in the account were sold under a different contract from that under which the rest were sold. If the two last items were sold under a separate contract, they could not be considered as a part of the original account, and, if they were not a part of it, then the lien was not filed within six months after the account accrued. All other requirements of the statute for the establishment of a lien were complied with.

The first item in the account is dated September 3, 1908, and from this time the ac

sold, with the others, under one entire general contract, so as to give appellant six months from October 12, 1909, instead of from May 3, 1909, in which to file a lien claim.

[1, 2] Where the evidence is conflicting, or where the circumstances are such as that dif ferent inferences may be reasonably drawn from the same facts, such a question is one for the jury. Darlington Lumber Co. v. Smith Building Co., 134 Mo. App. 316, 114 S. W. 77; Cole v. Barron, 8 Mo. App. 509. This rule is well established, and is not disputed. The contention of appellant is that the evidence shows that all of the items, including the last two, were sold under one entire general contract, and that there is no evidence upon which can be based the trial court's finding that the last items were furnished under a different one. If this contention is true, it is within our power to review the trial court's finding. If it is not true, that is, if there is any evidence supporting such finding, then it is a matter beyond our ken, since we cannot weigh the evidence. To ascertain the truth of the matter requires a very careful examination of the entire record and of all the inferences to be drawn therefrom. As a result of such examination, it can be said that there is practically no dispute as to the facts which govern this final and ultimate question of whether the items in the account were furnished under one general contract or under two. So that, after all, in this particular case, the question whether the materials were furnished under one or two contracts resolves itself into what inference the law will draw from what the parties to the contract did. As said in Page v. Bettes, 17 Mo. App. 375: "The jury are to find what the contract in fact was, and whether the contract thus

found is entire and continuing is a question | house or any of its parts, though such work of law for the court." If, therefore, the un- be done or ordered at different times, yet if disputed evidence shows what the contract the several parts form an entire whole, or was, and that the materials were furnished thereunder according to that contract, then the question whether the contract is entire is a question of law. Phillips on Mechanics' Liens, § 325. And if the trial court has erred in its view as to what constitutes an entire contract, then it is our duty to correct that error.

[3-5] It should be borne in mind that, so far as the contract is concerned, the only requirements demanded by the statute are that the materials for which a lien is sought must be furnished "under and by virtue of a contract with the owner." Section 8212, R. S. Mo. 1909. Of course, this means that all the items in one lien account must have been furnished under the same contract. But, if the evidence shows that all the items were furnished "under and by virtue of" one contract, then the vendor is entitled to his lien, although there may be facts and circumstances showing that they were furnished at different times, and were rendered necessary by different conditions. A running account is deemed an entire contract, and, for the purpose of fixing the time for filing the account to perfect a mechanic's lien, each item of the account relates to the last item delivered. Stine v. Austin, 9 Mo. 558; Phillips on Mechanics' Liens, § 325; Big Horn Lumber Co. v. Davis, 14 Wyo. 455, 84 Pac. 900, 85 Pac. 1048, 7 Ann. Cas. 940. There is no doubt but that the account in this case was a running account. It was a mutual account between buyer and seller in which was charged from time to time, as ordered, the materials sold, and on which was entered the various credits to which the seller was entitled by reason of payments made and articles returned. 7 Words and Phrases, 6277. Of course, if the materials were sold under separate and distinct contracts, then the mere fact that they were all charged in the form of a running account would not make them lienable under one contract. But, unless there is evidence to show a separate and distinct contract as to the last items, the account will be taken and considered, as it appears to be, a running account arising under and by virtue of the contract out of which the account originally grew.

[6-8] In discussing the question when materials are to be considered as having been furnished under an entire or under separate and distinct contracts, Phillips on Mechanics' Liens, § 229, mentioned several circumstances as marks to determine the matter. If the work is distinct in its nature, and is performed at different times, or if two distinct contracts are in fact made for different parts of the work, these are marks to show that there was not one entire general contract covering the whole account. "But when material is furnished, all going to the

are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlements, the whole account must be treated as a unit, or as being but a single contract." Phillips on Mechanics' Liens, § 229. And, in Bruns v. Braun, 35 Mo. App. 337, loc. cit. 344, it is held that, if a vendor should agree with the owner to furnish all the materials in the construction of a building, and after the work had progressed the owner should conclude to make changes in his original plan, or use some materials different from that originally contemplated, and should even agree as to the additional cost of construction, or if they should agree to leave that for adjustment on a settlement, it could not be held that the additional materials were furnished under a separate and distinct contract, although they may have been ordered at different times. Where materials are furnished as the same are required, without any specific agreement as to amount or the time within which they are to be furnished, and the items bought from time to time form parts of a connected whole in the building to which they are furnished, and there is nothing to indicate that the work is completed so as to lead the vendor to believe the account is ended, and no further material will be required of him, the vendor is entitled to a lien as under an entire contract. 2 Jones on Liens, § 1435. Where it is specially agreed or impliedly understood between the parties that the account is to be kept open and continued as one and the same continuous transaction and course of dealing, the account will be considered as one continuous account and one demand, and it is immaterial that the furnishing of the articles may have extended over a long period, or that several months may have elapsed between two, items of the account. 2 Jones on Liens, § 1435. Even where materials have been furnished confessedly after the substantial completion of the building, yet, if the work was necessary to the comfortable and proper use thereof, and the materials were not furnished for the mere purpose of preserving a lien, but were reasonably within the purview of the original contract, and no rights of third persons have intervened, the final furnishing of materials is regarded as sufficient to preserve the lien. 2 Jones on Liens, § 1444.

[9] What, now, are the facts in this case bearing on the question of whether the materials were furnished under one entire contract or under two separate and distinct contracts? The contract for the materials was made between Larsen, appellant's general manager, and W. F. Lyons, who was the president and the owner of practically all

company. As stated, the intention was to build an ice-manufacturing and meat-packing plant. Appellant was informed of this, and it was agreed that Lyons would order whatever materials were needed from time to time, and that appellant would furnish them. While some of the material was on a list which the two above-named men had, yet it was understood between them that this list did not contain all the material wanted, and in fact a great portion of the material never was on any list, but was furnished as called for. The material was not furnished according to plans or specifications of the buildings. While Lyons had plans and specifications from an architect by which he proceeded to erect the buildings, yet the contract for the purchase of the materials said nothing about any plans, and appellant never saw them. Neither was the contract limited to any definite or lump sum, nor was any time specified when the account was to close and become due. Both Larsen and Lyons testify to all this, and, as no one else was present, there is no one to dispute the nature of the contract. Neither is it necessary to rely on any inference or presumption arising from the after-occurring facts, since in the face of this clear and undisputed contract there is no room for inference or presumption. The erection of the buildings was proceeded with from the time of the contract, and appellant furnished materials from time to time as they were ordered. At the end of each month bills for the amount furnished to that date were rendered, and payments were made on the account from time to time. Before the plants were finished, the company moved into the building and began operations, and appellant continued to furnish materials long after such occupancy and operation. They continued to be furnished down to May 3, 1909, when the packing part of the plant shut down; but the icemaking part continued in operation. No materials were ordered between May 3, 1909, and some time in October of that year, nor were any furnished during that time, and consequently there is a break in the continuity of the dates of furnishing the items from May 3, 1909, to October 9, 1909. At the time Lyons ceased ordering in May, 1909, it is important to note that the building was not complete; there was no termination of the account, and no announcement of the completion of the building. Neither was there any settlement between appellant and the Lyons Ice & Power Company, or determination of the amount due thereon. Appellant was asking for payments to be made on the account, it is true; but this had been done all along, and payments had been made from time to time prior to May 3, 1909. Nor did appellant at any time declare the account ended, and refuse to extend credit further. But Lyons and Larsen testify to this. The packing part of the plant shut down in

operate it. About October 1, 1909, the Lyons Ice & Power Company leased the packing part of the plant to the Indianapolis Abattoir Company. That company required the Ice & Power Company to finish up as a tallow-cooling room a certain portion of the space in the building which had been intended for a hog-cooling room, but which had not been finished for that purpose, and was used as an office by the Ice & Power Company. In other words, the room in question was intended for a hog-cooling room, but had not been finished up for that purpose, and the Ice & Power Company was required to finish it for a tallow-cooling room when it was leased to the Indianapolis Company. The only difference between the two cooling rooms would be that the ceiling in the room used as a hog cooler would have to be higher than if the room was used as a tallow cooler. To finish it either way required the same materials as were furnished in the last items. It was for the purpose of finishing up this unfinished, intended, hog-cooler room as a tallow cooler that the two last items in the account dated October 9, and October 12, 1909, respectively, were furnished. There was some other work to be done by the Ice & Power Company in order to make the plant suit the Indianapolis Company, and also some which the Indianapolis Company was to do at its expense; but, as no items for this other work entered into the account sued on, this other work is immaterial except as showing the reason for Mr. Larsen's going out to the plant at the time work was resumed on the building in October, 1909. He went out there, not for the purpose of making a new contract with the Lyons Ice & Power Company, but to give to the president of the Indianapolis Company an estimate of what the material would cost to make the necessary arrangements it was to do at its expense. There is no testimony that any new or different contract was entered into between appellant's manager, Larsen, and the Lyons Ice & Power Company. The two items of October 9 and October 12, 1909, were sold on credit for use in finishing up the cooling room, and were charged on the account as the other items were charged, and were no different from what would have been needed had the room been finished as a hog-cooling room. And the court, in its findings of fact, states that these items were not charged to the account by appellant for the purpose of extending the time for filing its lien, but were sold in good faith for the purpose of being used, and the same were used, in the construction of the building in question. If they were sold in good faith as a part of the running account between appellant and the Ice Company, and to be used in completing the building, then appellant ought not to be deprived of its lien on the ground that the last two items were sold under a different contract, unless there was a new and distinct

sufficient notice brought home to appellant | sold thereafter as before, to a different conthat the materials were ordered under a dif- tract. The statute makes no such limitation, ferent contract, or were for such an entirely but merely requires that, if the materials different purpose that they could not be con- were sold "under and by virtue of one considered as a part of the original contract. tract," and were used in the erection of the In this case there are no equitable rights of building contemplated by the parties, and a others to intervene. The defendant owner lien claim was filed within a certain time and the holders of the deeds of trust thereon after the indebtedness accrued, then a lien knew, before their interests therein came in- should be had. We think the evidence all to existence, that the amount of appellant's showed this, and that there was no evidence account for which it sues was unpaid, and to the contrary. It showed that the materials that a lien therefor would be claimed. were all furnished for the same building in installments and at intervals, and the parties intended them to be included in one account and final settlement, and such was the contract expressly entered into by Larsen and Lyons. In such case the entire account will be treated as a continuous and connected transaction, and the lien limitation will begin to run from the last item of it. Darlington Lumber Co. v. Harris, 107 Mo. App. 148, loc. cit. 155, 80 S. W. 688.

[10] But respondent contends that, when the Ice & Power Company began ordering materials in October, it paid cash for a part of what it then bought, and this fact creates a new and distinct contract different from the one under which the former items were sold, which new contract includes the two items which were sold on credit and charged. It is undisputed, however, that appellant did not demand cash. Larsen testifies that he never refused to extend credit, and Lyons says the only reason he paid cash was, not because Larsen demanded it, but because the account was already so large, and a payment had not been made thereon for so long a time, that he did not feel like ordering more stuff without paying for it as he got it. As the appellant received cash for certain items, no bookkeeping was done as to them, and hence they do not appear on the account. But the evidence is uncontradicted that the two last items were ordered and used, that no cash for them was demanded, and that no cash was ever paid therefor, but that they were sold and charged as other items had been. It clearly appears that the two last items were used within the purview of the purpose contemplated by the parties in entering into the original contract. But it does not clearly appear what the cash items were used for. For aught that we know, these cash items may have been for materials necessary to make the alterations demanded by the Indianapolis Company, and which could not be considered as going into the erection of the building as contemplated by both parties at first. We do not say that, if they did, this would make them the subject of a separate and distinct contract; but, if they were for a different purpose than that within the purview of the original contract, then the fact that they were purchased and paid for in cash would not have the effect of causing other items, clearly within the original contract and not paid for, to be held to have been purchased under the separate contract. The mere fact that one who has purchased goods on a running account buys a few articles on a cash basis, at his suggestion, will not cause articles purchased later on credit, and for the original purpose, to be deemed to have been purchased under a new and distinct contract. And the fact that the vendor, acting in accordance with the suggestion of the vendee, sells certain items on a cash

[11, 12] The evidence being uncontradicted that no new contract was demanded by appellant or made between the parties empowered to make it, appellant ought not to be deemed to have sold the last items under a new contract, and thereby lose its lien and consequently its money, unless the evidence clearly shows there was a new contract. The case is not like those where materials were furnished without original specific agreement, or where work different and distinct in its nature is done, and the materials relied upon to save the lien were sold for such distinct work; nor is it like those where the work has been completed, and extra work is required. In this case the materials were all clearly purchased and used for the same general purpose originally contemplated; there was no finishing of the building, nor was there any recognition that the account was closed by either party. Neither was there a refusal to extend credit further. Both Lyons and Larsen, the men who had the authority to, and did, make the contract, say there was no refusal. And the fact that credit was in fact afterwards extended shows that there was no refusal to sell further on credit. The testimony of Fowler, one of the carpenters working about the building, that "I think Mr. Larsen and I understood each other that the stuff was to be cash," was nothing more than a mere conclusion, and would not warrant a finding that a new contract was made. Besides, Fowler was not making a contract. He was merely ordering the lumber as needed. Neither could Larsen's remarks, when told by Fowler that the materials needed for the alterations required by the Indianapolis Company would be cash, to the effect that, "He supposed I understood that the Lyons Ice & Power Company owed them quite a large bill that was unpaid, and he didn't suppose the firm would want to extend the credit further," be construed into a demand that a different contract be

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