McDermott v. Claas

• Decision Date: 31 March 1891
• Citation: 15 S.W. 995,104 Mo. 14
• Parties: McDERMOTT v. CLAAS et al.
• Court: Missouri Supreme Court

15 S.W. 995

104 Mo. 14

McDERMOTT v. CLAAS et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

MECHANIC'S LIEN — PLEADING — HARMLESS ERROR.

1. A petition to foreclose a subcontractor's lien stated who the contractor was; that he was indebted to plaintiff; that plaintiff notified the owner that he claimed a lien for said indebtedness, stating also from whom the same was due; and that he afterwards filed a just and true account of the demand so due him. Held, that the petition sufficiently showed that the account filed gave the name of the contractor, as required by Rev. St. Mo. 1879, § 3176.

2. A lien claim for furnishing and laying a given number of brick is sufficient, though it does not state whether the bricks were computed by actual count or by wall measurement, nor separate the value of the brick from that of the sand and lime used in laying them.

3. Where, under one contract, bricks are laid in a house, and in an adjoining sidewalk on a public street, the contractor may have a lien on the house for the material used in the sidewalk, as well as that used in the house.

4. Where, in a suit to foreclose a subcontractor's lien, there is no real dispute as to the facts, the admission in evidence of an acceptance by the owner of the subcontractor's bid is not reversible error.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

W. F. Smith and D. D. Fassett, for appellant. Stark & McEntire, for respondent.

THOMAS, J.

Godfrey Fritz in March, 1886, contracted with Charles Claas to erect a three-story brick building on a lot belonging to the latter in the city of St. Louis; and plaintiff, as subcontractor under Fritz, agreed to do, and did do, the brick-work, and this action was brought against Fritz to recover the value of the work, and against Claas to foreclose a mechanic's lien against the building and the lot on which it stood, the amount claimed being $2,514. The case was tried by the court without a jury. Judgment went against Fritz personally for $2,758.70, that being the principal and interest of the demand, and against Claas, fixing a lien on his property, and awarding a special fieri facias against it for the payment of that amount. Claas alone appeals.

1. The first error urged for a reversal of the judgment of the trial court is that the petition does not state facts sufficient to constitute a cause of action, and appellant's objection to the introduction of any evidence under it ought to have been sustained. Section 3176, Rev. St. 1879, requires a subcontractor to file with the clerk of the circuit court an account of the amount due him, "with the name of the owner or contractor, or both, if known to the person filing the lien." It is insisted that the petition in this case fails to state that the account filed with the clerk gave the name of the contractor, and for that reason failed to state a cause of action to foreclose a mechanic's lien in favor of a subcontractor. We do not think the assumption that the petition fails to make this statement is justified by the record. The petition describes the building to be erected, and the property on which it was erected; alleges that appellant owned the property; that Godfrey Fritz was the contractor with appellant for the erection of the building; that plaintiff made a contract with said Fritz to "do the brickwork and furnish the materials for" the building for $2,514, which work he did, and for which said Fritz was still indebted to him, none of this sum having been paid. The petition then alleges that "within four months after the completion of the building, he gave notice to said defendant Claas that he claimed a mechanic's lien against the buildings and real estate aforesaid, for the sum aforesaid due, stating also from whom the same was due, for the work and labor done and materials furnished by him as aforesaid, and that, unless the said amount was paid within ten days," plaintiff would file a mechanic's lien on said buildings and real estate; that, no part of said sum being paid, within four months after said indebtedness accrued, to-wit, on the 8th day of September, 1886, plaintiff filed in the office of the clerk of the circuit court of the city of St. Louis, state of Missouri, "a just and true account of the demand so due him as aforesaid, after all just credits had been given, and also a true description of said real estate whereon said buildings were erected on which the work and labor mentioned was done and materials furnished to, or so near a true description thereof as to identify the same, claiming that said demand was a lien on said property, together with the name of defendant Claas as the owner of said property, all of which statements were verified by plaintiff by his oath; by virtue of which last-named proceeding plaintiff became entitled to and has a mechanic's lien on and against said real estate, and the buildings and improvements thereon."

We think the petition does state that the account, filed by plaintiff in order to obtain the lien, gave the name of the contractor. It does not do this in so many words, but that is the effect of what is stated. The petition having stated who the contractor was, and that he was indebted to him in the sum of $2,514 for this work, goes on to state that plaintiff notified appellant that "he claimed a mechanic's lien against the building and real estate for the sum aforesaid due, stating also from whom the same was due," and that on the 8th day of September, 1886, he filed with the circuit clerk of the city of St. Louis "a just and true account of the demand so due him as aforesaid." That the petition alleges that the notice of the lien gave the name of the contractor there can be no question, and when the amount of the account and the name of the party who owes it are given, and then the averment is made that plaintiff filed a "just and true account of the demand so due him as aforesaid," the inference is that not only the amount of the account, but the name of the party from whom it was due, were given. Too much ought not to be left to inference in pleadings on the one hand, nor ought the courts to favor vague and indefinite objections on the other. Here the objection was that the petition did not state a cause of action. The particular objection under discussion was not made in the court below. The court and opposite counsel were left to conjecture what the defect in the petition was. If a petition wholly fails to state a cause of action, this general objection is sufficient. Section 2047, Id. 1889. But if the petition states a cause of action imperfectly or indefinitely, this objection will not avail. In that case, other methods, such as a motion to make more certain and definite, are provided. Spurlock v. Railway Co., 93 Mo. 530, 6 S. W. Rep. 349. This is a cutthroat practice at best, and is often used oppressively. Such an objection can be taken by demurrer, but parties choose to remain under cover, and spring it on their adversaries at a time when they are least able to defend themselves or parry the blows. However, as every one ought to know, and must be held to know, when he has stated a cause of action or failed to state one, he ought not to complain, if taken by surprise at an inopportune time. But such an objection, to be available at the trial, must go to the entire sufficiency of the petition to state a cause of action, and cannot avail where it states a cause of action, but is indefinite and imperfect in some of its averments. We think in the case at bar, if there be any defect in the petition, it is simply in not making...