*352DISSENTING OPINION.
ROBERTSON, P. J.The testimony in the trial of this case was very brief and is dne, I think, to the fact that only two defenses were relied upon. One was that the notice is defective because it names individuals and not the corporation; the other is, that the lien statement is defective for the same reason. I think the record sustains this assertion of the defenses.
The majority opinion announces the correct conclusions and I think properly declares the law until the conclusion is reached, as announced in the latter part of the opinion, that the plaintiffs “failed to show that the extras were furnished under any contract whatever and therefor their case failed as to the amount claimed for extras.” The fallacy of this conclusion is shown, in my judgment, from the record wherein one of the plaintiffs testified: “Q. You may state to the court whether or not you had a contract with Watts and Stone for doing any work for Ball and Gunning Milling Company in Webb City, Mo.? A. Yes, sir: We had a contract to that effect. Q. Was your contract in writing or verbal? A. It was in writing.” The witness then identified the contract which refers to the plans for dimensions, depth, etc., of foundation, testified as to credits and then proceeded: “Q. What was the balance due after allowing all just credits and set-offs? A. $818.75. Q. Is the character of the work you did the work specified in this contract? A. Yes, sir.” Upon cross-examination this witness testified that the total amount “of the original contract was $7200.” This was not sufficient, after allowing credits, to make the full balance claimed, but “The rest of it was for work that Mr. Stone had the plans changed and put in.” The witness continued: “Q. Had the plans changed afterward? • A. He ordered heavier foundations and deeper excavations and so on, made the difference. Q. The work was actually put in on the *353building? A. Yes, sir. Tbe Court: Let me ask for information. Is this account all for labor or is any of it for material? Mr. Gray: It is for material and labor as shown in the account. The Court: And the material you have in that account went on that elevator? A. Yes, sir. The Court: The work you have charged for was work done on that elevator? A. Yes, sir.” Then the trial judge remarked that he supposed there was no question about the appellant owning the elevator, to which the attorney for respondent replied: '“No, I understand the defense relied on in this case is that this notice of filing this claim which was given to Gunning and described as Ball and Gunning when it was the Ball and Gunning Milling Company, I understand from Mr. Sheppard that was the real defense in the case.” The plaintiffs then offered in evidence the notice to which the defendant objected for the reason ■of the discrepancy in the names. The trial court then asked: “Is that the defense in this case?” To which the attorney for the defendant replied: ‘ ‘ That and the lien statement. ’ ’ Then when the lien statement was offered in evidence the only objection made was as to the discrepancy in the names as above noticed. In my judgment the points upon which the majority opinion forces the plaintiffs to surrender a portion of their claim was never thought of in behalf of the defendant in the trial court. Surely nothing was said or done to indicate to the plaintiffs or to the trial court such defenses. This case I believe presents an instance where the parties in effect conceded that the facts were true, and needed no proof, which the majority opinion holds the plaintiffs failed to show. I think the defend.ant assumed a position which justified the plaintiffs and the trial court in assuming that all other facts, than the question of the sufficiency of the notice and the lien statement on account of the variation in the names, were conceded, and this court in now recogniz*354ing the right of defendant to thus charge its position I deem to be in conflict with City of St. Louis v. St. Louis, Iron Mt. & S. Ry. Co., 248 Mo. 10, 25, 154 S. W. 55.
We may, however, for the purposes of a decision in this case, assume that the defendant did not concede that the allegations of the lien statement were proven, yet I think the testimony is sufficient to justify the conclusion that the plaintiffs did follow up the lien statement and show that all of the amount claimed therein was furnished under a contract. The lien statement alleges the date when the work “begun on contract of building and constructing eight concrete wheat tanks to be built and constructed of sand, chat cement and reinforced with iron rods and wire.. . . That the price of the cement, sand, chat, iron bars and wire, and the labor performed in the construction of said eight wheat tanks was $7600.35.” This means that such is the value of these items in the tanks. McDermott v. Class, 104 Mo. 14, 23, 15 S. W. 995. The testimony which I think supports this allegation and the lien statement has been quoted above wherein one of the plaintiffs testified that they did the work provided for in the contract. It is true the witness testifies that the original contract was changed by changing the plans and making the foundations deeper, but this yet allowed the changed contract to stand as the final and only contract for the performance of which the plaintiffs are entitled to a lien. This is the contract alleged in the lien statement and the one about which the witness testified. [National Press Brick Co. v. W. H. Lester Construction Co., 177 Mo. App. 573, 160 S. W. 1027.] I also deem the majority opinion in conflict with the opinion in that case. The inference is justifiable, and in fact no other conclusion should be reached, I think, that the contract to which reference is made in the lien statément is the contract after the plans had been changed. When the contract was changed it was yet, as changed, the contract, and the *355only contract, under which the improvement was made. The proof sustains this charge. I think that the defendant and the trial court recognize this as correct. There is no question of “extras” involved in this case, as I see it. The plaintiff offered in evidence the written contract which calls for the plans the plaintiff testified were changed, in answer to a question propounded to him in behalf of the defendant.
The judgment, I am firmly convinced, should be affirmed.