10 S.W. 868 (Mo. 1889), Henry & Coatsworth Co. v. Evans

Citation:10 S.W. 868, 97 Mo. 47
Opinion Judge:Barclay, J.
Party Name:Henry & Coatsworth Company, Appellant, v. Evans et al
Attorney:J. K. Cravens for appellant. C. O. Tichenor also for appellant. Traber & Gibson and R. J. Ingraham also for appellant. R. B. Middlebrook for respondents. Botsford & Williams and B. F. Deatherage also for respondents.
Case Date:February 18, 1889
Court:Supreme Court of Missouri
 
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Page 868

10 S.W. 868 (Mo. 1889)

97 Mo. 47

Henry & Coatsworth Company, Appellant,

v.

Evans et al

Supreme Court of Missouri

February 18, 1889

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

J. K. Cravens for appellant.

Every person who furnishes any materials for any building, erection or improvement upon land, under any contract with the owner or proprietor thereof, or with the contractor with such owner or proprietor, to construct such building, erection or improvement, which materials are actually used in such building, erection or improvement, and who has complied with the provisions of article 1, chapter 47 of the Revised Statutes, 1879, has a lien upon such building, erection and improvement for the value of such materials unpaid, and upon the land upon which the same may be situated, to the extent limited by section 3172. The fact that the owner may have settled with his immediate contractor, and, before notice of such claim, in good faith have paid him the contract price in full, will not defeat the right of the materialman to have such lien. R. S., secs. 3172, 3191; Speilman v. Shook, 11 Mo. 340; Heamann v. Porter, 35 Mo. 137; Kuhleman v. Schule, 35 Mo. 142; Fitzgerald v. Thomas, 61 Mo. 499-501; Douglas v. Zinc Co., 56 Mo. 388; Urin v. Shook, 11 Mo. 142; Peters v. Railroad, 23 Mo. 107; Winder v. Caldwell, 14 How. (U. S.) 434.

C. O. Tichenor also for appellant.

(1) The legislature can pass a law so as to give a lien to one for materials furnished by him to the contractor and actually used in the building, in case the whole contract price of the building has been paid to others for labor done and material used (2) The statute in such a case gives a lien.

Traber & Gibson and R. J. Ingraham also for appellant.

(1) Section 3172, Revised Statutes, is as follows: "Every mechanic who shall do any work upon any building under any contract with the owner or his contractor shall have a lien." This language is too plain to be mistaken; and that interpretation must be adopted which the words themselves import. State v. Diveling, 66 Mo. 379. The supreme court cannot go outside the language of this statute to ascertain that the legislature meant one thing when it declared another. State ex rel. v. Gammon, 73 Mo. 246. When an act is expressed in clear and precise terms; when the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it, is to elude it. The popular or received import of words furnishes the general rule for the interpretation of statutes. Potter's Dwarris, 143. It is the duty of all courts to confine themselves to the words of the legislature, nothing adding thereto, nothing diminishing. The introduction of qualifying words in the interpretation of statutes is frequently a great reproach to the law. Potter's Dwarris, 200. Words used in a statute will be construed in their plain, ordinary and usual sense, their generally accepted meaning. Sess. Acts 1885, p. 190; State v. Anderson, 84 Mo. 527.

R. B. Middlebrook for respondents.

(1) The facts here are identical with those in Henry v. Hinds, 18 Mo.App. 497. (2) It is presumed that the sub-contractor has notice of the terms of the contract between the owner and the original contractor. Scott v. Cook, 8 Mo.App. 193; Garnett v. Berry, 3 Mo.App. 205; Henry v. Hinds, 18 Mo.App. 497; Stewart v. Wright, 52 Iowa 335; Greenway v. Turner, 4 Md. 296; Jensen v. Brown, 2 Col. 697-698. (3) The object of giving notice to the owner by sub-contractors is to enable the owner to withhold from the original contractor sufficient to pay the sub-contractor. Jensen v. Brown, 2 Col. 697-698; McIntire v. Barnes, 4 Col. 285; Epley v. Scherer, 5 Col. 536; Morrison v. Hancock, 40 Mo. 566; Colter v. Frese, 45 Ind. 96. (4) The lien of the subcontractor and material-men is always in strict subordination to the terms of the original contract between the owner and his immediate contractor. McIntire v. Barnes, 4 Col. 285; Garnett v. Berry, 3 Mo.App. 205.

Botsford & Williams and B. F. Deatherage also for respondents.

(1) The lien of the sub-contractor rests upon and is subordinate to the contract between the owner and the contractor. Phillips on Mechanics' Liens (2 Ed.) secs. 62, 62 b; Campbell v. Scarfe, 1 Phil. Rep. 187; Jensen v. Brown, 2 Col. 694; Prescott v. Maxwell, 48 Ill. 84; Kling v. Construction Co., 7 Mo.App. 410; Deardorff v. Everhart, 74 Mo. 37. (2) The lien of a sub-contractor only exists by virtue of the contract between the owner and contractor, and where there is no such contract, no lien exists in favor of any material man or sub-contractor. Roland v. Railroad, 61 Iowa 380; Andrews v. Burdick, 62 Iowa 714; Whittier v. Hollister, 64 Cal. 283; O'Donnell v. Kramer, 65 Cal. 353; Turner v. Strenzel, 70 Cal. 28; Wiggins v. Bridge, 70 Cal. 437; Rosecranse v. Wagner, 62 Cal.154. (3) The mechanic's lien law, if construed to bind the owner's property in favor of a sub-contractor, where the contractor has been paid the contract price in full, due under the contract between the owner and contractor, is unconstitutional and void.

OPINION

[97 Mo. 50] Barclay, J.

Plaintiff, a sub-contractor, seeks to establish as a lien a demand for materials furnished toward the erection of a building on land of defendant Dickinson.

The exact controversy presented for decision arises from the following undisputed facts: Evans was the original contractor with Dickenson for the erection of certain buildings on land of the latter. Plaintiff, under a contract with Evans, supplied materials used in their construction. Plaintiff's account therefor was not paid. Notice of the demand was served on the owner and the account filed in due time as a lien on the property in accordance with the lien law. No defect in the formal [97 Mo. 51] steps taken by plaintiff is suggested, but it appears that the owner had paid the original contractor the full amount of the agreed price for the buildings before notice or knowledge of plaintiff's demand; and that the contractor had applied that amount to discharge other valid claims against the property for labor and materials furnished, reserving nothing for himself. The circuit court rendered a personal judgment for the amount of plaintiff's demand...

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