Architectural Iron & Foundry Co. v. Construction Co. account, such as to make the case one for compulsory reference, the findings of the referee, approved by the court, have the force and effect of a special verdict of a jury, and are binding on appeal if supported by substantial evidence. In other words, in a case of this character, the appellate court will not review the evidence to determine its weight, but may review it to determine whether or not there is substantial evidence to support the findings of fact. Such is the rule of decision announced by the Supreme Court, in Banc, in St. Louis v. Parker-Washington Co., 271 Mo. 1. c. 241, 196 S. W. 767. In Johnston v. Star Bucket Pump Co., 202 S. W. 1143, which was likewise before the court in Banc, this question is fully discussed in the opinions filed therein. The majority opinion follows the doctrine of the Parker-Washington case, supra, but lacks the concurrence of a majority of the members of the court on this point, one of the judges (necessary to a majority) concurring in the result only. The effect of this case is to leave the law of this State, on this question, that promulgated in the majority opinion in the Parker-Washington case, supra. [See also: Roloson v. Riggs et al., 203 S. W. 973.] II. The defendant owner, on its appeal, contends that plaintiff is not entitled to a lien for the reason that it appears that the lien account, filed February 21, 1907, was not filed within four months from the time of the accrual of plaintiff's demand. But this contention is obviously without merit. In the lien paper it is stated that "the work and labor done in erecting and putting said material in place in said building was done continuously from August 10, 1906, up to and including October 22, 1906, excepting work about one of the doors about said building required to be done under said contract, which last named work was done on the fourteenth day of November, A. D. 1906, so that the above account accrued on the fourteenth day of November, A. D. 1906." The proof shows Architectural Iron & Foundry Co. v. Construction Co. and the referee found that plaintiff furnished the iron and steel work on the building continuously between August 10, and October 22, 1906; and that the labor shown to have been performed by plaintiff on November 14, 1906, was not voluntary, for the purpose of extending the lien period, but was required to be done by the architects of the defendant owner in order that the work contracted to be done by plaintiff might be delivered to the owner in good working order, as required by its contract as well as by the contract of the defendant contractor. The referee therefore concluded, as a matter of law, that plaintiff's demand accrued on November 14, 1906, (citing: Darlington Lbr. Co. v. Smith Bldg. Co., 134 Mo. App. 316, 114 S. W. 77; General Fire Extinguisher Co. v. Schwartz, 165 Mo. 171, 65 S. W. 318, and other cases); stating further that since it had been found that the work was not substantially completed until October 22, 1906, the lien was filed within four months from that date. Manifestly the lien was seasonably filed. III. The defendant owner also contends that the lien account is insufficient on its face, and is not a just and true account, for the reason that it "shows only the delivery of material at specified dates, at itemized values," whereas the evidence shows that labor entered largely into the account; and furthermore that "the material was furnished and the work done under a contract lump price, which was arbitrarily apportioned in the lien account among the items of material delivered on the dates specified." It is true that the account proper, contained in the lien paper, consists merely of specified items of iron and steel work, such as beams, trusses, girders, etc., each item being preceded by a date and followed by a specified price. But this account, in the lien paper, bears a heading stating that the account is "for iron and steel materials furnished and work and labor done in the erection of said building.” And preliminary to Architectural Iron & Foundry Co. v. Construction Co. the account it is stated in the lien paper that the lienor, with a view to avail itself of the benefit of the statute relating to mechanic's liens, files the account set forth, "for the work and labor done and materials furnished by it" under contract with the defendant contractor. The evidence shows that the prices included in the account represent the reasonable value of the materials and labor involved in furnishing and installing each item. The lien paper filed is to be considered as a whole (Wilson-ReheisRolfes Lbr. Co. v. Ware, 158 Mo. App. 179, 1. c. 184, 138 S. W. 690; Wilson-Reheis-Rolfes Lbr. Co. v. Capron, 145 Mo. App. 497, 122 S. W. 1085; Banner Lbr. Co. v. Robson, 182 Mo. App. 611, 168 S. W. 244); and so considering that filed by plaintiff, we are of the opinion that it is sufficient to support a lien for plaintiff's demand. Evidently the prices charged for the various items were intended to include not only the reasonable value of the material furnished but the reasonable value of the work and labor mentioned in the lien paper, i. e. the work and labor performed in installing in the building the items mentioned; and this accords with the evidence in the case. It is also true that the materials were furnished and the work done under a contract price of $8600for the whole-with the exception of three items of "extras," aggregating $46.48, shown, to have been furnished at the contractor's request, which increased plaintiff's claim to $8646.48. Plaintiff, however, in filing its lien account, has apportioned the entire contract price among the various items of the account other than the three items of "extras;" the prices charged for the items embraced within the original contract aggregating $8600, the contract price for the whole. It is earnestly contended by the defendant owner that such "arbitrary apportionment" of the entire contract price among the specific items of the account renders the account not a just and true one, and that on this account the lien must fail. This argument appears to find support in language used in Architectural Iron & Foundry Co. v. Construction Co. Grace v. Nesbitt, 109 Mo. 1. c. 19, 18 S. W. 1118, and in National Press Brick Co. v. Construction Co., 177 Mo. App. 573, 1. c. 581, 160 S. W. 1027. But an examination of these cases will reveal that such language was, in each instance, obiter dicta. The referee notices this question-though the point was not made before him-stating, in his conclusions of law, as follows: "Had the defendants objected to the introduction in evidence of the lien account on the ground that it was not true because the contract lump price for the labor and materials as a whole had been arbitrarily apportioned to the various articles named a more serious question would have been presented. Not hav ing specified this ground, this defect, if any, was waived." And authorities are cited in support of this ruling. The defendant owner excepted to the referee's report on this ground, and contends that the point was thereby saved for review here. Plaintiff, on the other hand, insists that objection to the lien account on this ground has been waived. It is by no means clear that the account should be held to be insufficient to support the lien on the ground mentioned. No case has been called to our attention wherein the lien account has been rejected on the ground that it was not just and true because of the fact that it set out itemized prices, whereas the contract price was a lump sum. Here all of the labor and materials called for by the contract are included within the account filed, and the total of the itemized prices-excluding the three items of extras-is precisely the amount of the contract price. By this account the owner is merely furnished more information regarding plaintiff's demand than would appear in an account which merely stated a lump price for the whole. We are not prepared to say that under such circumstances the lien account should be held to be not a just and true account. However, we regard it as clear that since no such objection was made to the account on the trial before the referee, and no point made of the matter whatsoever, the attempt to chal Architectural Iron & Foundry Co. v. Construction Co. lenge the account on this ground, by an exception to the referee's report, came too late. [See Hill v. Bailey, 8 Mo. App. 85.] It is argued for the defendant owner that the question is properly raised by excepting to the referee's conclusion that the lien account was sufficient in law. But in reaching this general conclusion the referee merely passed upon the objections leveled at the lien paper. He was not required to do more. And the trial court, in considering the exceptions to the report, was not required to pass upon questions which the parties had waived by failing to timely raise them before the referee. In the state of the record before us, it cannot be said that this question has been passed upon below, or or presented for adjudication, since the refree held that "this defect, if any," had been waived, and the trial court simply sustained the report, overruling all of the exceptions thereto. We think that the owner should not be heard to urge the point on appeal. It is further contended that the lien account is not just and true for the reason that it failed to give credit for the amounts claimed by defendant contractor in its first and second counterclaim. There is no merit in this contention. It appears that plaintiff did not know of the existence of the unliquidated demand of the defendant contract or for $47.68, the basis of the second counterclaim, when the lien account was filed. And indeed the defendant contractor failed to establish such demand. The $3000 claimed in defendant contractor's first counterclaim was an unliquidated claim for damages which was a matter in dispute between the parties. The referee found that there was no fraudulent or intentional failure to give proper credits, and quite properly held that the lien account was not subject to attack on this ground. [See Wilson-Reheis-Rolfes Lbr. Co. v. Watson, supra; Hydraulic Press Brick Co. v. McTaggart, 76 Mo. App. 347.] 200 M. A.-4 |