This is a proceeding to enforce a mechanic’s lien. The plaintiff is a dealer in plumbing supplies. The defendant Neel made a contract with his co-defendant, the Faurot Company, a manufacturing concern, to construct in his building hot water heating appliances, including radiators. It is claimed that said Faurot Company bought the radiators that were used in the construction of said heating appliances from the plaintiff. Defendant Neel’s answer was a general denial.
On the trial plaintiff sought to prove that the articles in question were sold by the plaintiff to the Faurot Manufacturing Company, aforesaid, for the purpose of being used in the defendant Neel’s building, and for that purpose introduced Mr. Faurot, one of the members of the defendant company, who testified by deposition. In his deposition he made the following statement: “I went to the Crane Company with a list of the materials to be used in the construction of the heating plant in Dr. Neel’s residence and stated to the Crane Company that that material was for use in the Neel residence and that they would receive their pay on completion of the work.” On motion of defendant Neel, the following part of said statement was struck out of the record so .far as it affected him, to-wit: “And stated to the Crane Company that that material was for use in the Neel residence and that they would receive *182their pay on completion of the work.” The plaintiff also introduced the deposition of Andrew Seymour who was the plaintiff’s bookkeeper at the time the articles in controversy were sold. In said deposition the witness referred to a certain entry in plaintiff’s book which contained the original order for the articles in dispute. This paper was identified as “Exhibit A,” but was not attached to the deposition, being sent under seal to the clerk of the circuit court. The notary was in court and plaintiff offered to withdraw_ the deposition and have the said item attached to it by him but the court refused the offer and excluded the exhibit. It was shown that it was the habit among the lawyers practicing in the Kansas City courts to withhold exhibits and produce them on the trial. There was other evidence introduced but plaintiff frankly admits that without that which the court excluded he was hot entitled to recover. The court peremptorily instructed the jury to find for defendants. Plaintiff assigns as error the action .of the court in excluding said evidence.
In Deardorff v. Everhartt, 74 Mo. 37, it was held:
“The declarations of the contractor that the materials were purchased for appellant’s building, although made when they were obtained, are not evidence against the owners of the land.” And a different ruling made in Morrison v. Hancock, 40 Mo. 564, was overruled. While plaintiff insists that the ruling in the former case is not good law it would not apply to this for the reason that here the contractor was testifying to his own declarations, which would prevent the .application of said rule. But we can not see how that fact could make any difference as the reason for the rule is that the contractor not being the agent of the owner.of the building is not authorized to bind such owner by his declarations. The rule is also recognized in Grace v. Nesbitt, 109 Mo. 9. But it is suggested that the rule only had reference, to its incompetency as evidence that the material was used in the construction of the building sought to be charged *183with the lien, bnt that it is competent evidence to prove that plaintiff sold the material to be used in snch building. In other words, that the sale was made upon the credit of the building. We do not see how this can be so. The plaintiff may have sold the material to the contractor without any intention of looking to the building as security for the,price of the material, and the mere fact that plaintiff knew that the material was to be used in defendant’s building was no evidence in itself that it so sold it to be so used. And the fact, if it was a fact, that plaintiff delivered a part- of the material on the premises sought to be charged with the lien is also of itself no evidence that it was so sold. The plaintiff may have, for aught that appears in the record, sold the material in question without reference to any particular place where it might be used, as materialmen sometimes do where the financial standing of the contractor appears to be a sufficient guarantee for the price of the materials; or, in other words, where the sole credit is given to the contractor. And such seems to have been the case here according to the evidence of the defendant Neel who testified that before he paid the contractor for the material in question a member of the plaintiff’s firm informed him that it had not sold to Faurot. Company the material to be used in his house and that Paurot informed him that he was buying all his material from plaintiff without any reference as to where it was to be utilized.
The action of the court in excluding “Exhibit A” aforesaid is also approved. Section 2903, Revised Statutes 1899 requires: “All exhibits produced to the person (taking the deposition) and proved or referred to by a witness shall be inclosed, se.aled up and directed to the clerk of the court in which . . . the action is pending.” But plaintiff contends that said section is only directory and not mandatory. We think other-, wise. And it is not perceived how the evidence of a witness and an exhibit, the identification of ivhich de-
*184pends upon the witness, can be admitted in the form of a deposition without a compliance with the statute. It was competent, with the permission of the court, for the plaintiff to have withdrawn the deposition and attach said exhibit. But this should have been done before the trial, at which time, judging from what the court said, it would have been permitted. But it was a question of discretion in the court which we think was soundly exercised. With the evidence excluded the plaintiff failed to show that the articles were sold to be used in defendant’s building and he was not therefore entitled to a judgment enforcing his lien on the property.
There are ether questions raised on the appeal but in view of the foregoing conclusions they are not deemed important and will not be considered.
The cause is affirmed.
Smith, P. J., concurs in result. Ellison, J., concurs in result in separate opinion.