Hayden v. Wulfing

• Decision Date: 10 November 1885
• Citation: 19 Mo.App. 353
• Parties: T. F. HAYDEN ET AL., Respondents, v. CHARLES WULFING, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 353

T. F. HAYDEN ET AL., Respondents,
v.
CHARLES WULFING, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 10, 1885.

[19 Mo.App. 354]

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

LEO RASSIEUR and DEXTER TIFFANY, for the appellant: There is no proper account filed. An account should be so stated that the defendant may be advised what is claimed for each item, so that he may make a defence. He is entitled to know, when it is claimed the items were furnished and which item was furnished last, and when, so that he may make his defence, if that item was furnished more than four months before the filing of the lien. Lowis v. Colter, 6 Mo. App. 55; Cole v. Barrow 8 Mo. App. 511; Heinrich v. Cardt G. S., 8 Mo. App. 588.

TAYLOR & POLLARD, for the respondents: It is immaterial that the plaintiff was a surety on the contractor's bond. Hartman v. Berry, 56 Mo. 487; Atwood v. Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462; Bond v. Worley, 26 Mo. 253.

ROMBAUER, J., delivered the opinion of the court.

In this action, which was brought by sub-contractors to enforce their mechanic's lien against the property benefited by the work and materials furnished, the court below rendered judgment against the contractor and against the property.

From this judgment the owner alone appealed, and

[19 Mo.App. 355]

now assigns for errors, (1) that the court improperly struck out part of his answer; (2) that the court improperly admitted the lien account in evidence against his objections; and, (3) that the plaintiff's petition states no cause of action sufficient to charge the property, because it fails to aver that it was filed and the suit brought within ninety days after the filing of the lien.

The part of the defendant's answer which was stricken out, averred that Thomas F. Hayden, one of the plaintiffs, was one of the parties to the original contract under which the houses were erected, and by his contract agreed to protect the defendant, Wulfing, from all mechanic's liens against the property. This averment may have been literally true, and yet admits of the construction that the plaintiff was a mere surety for the original contractors, a fact which was subsequently established by proof upon the trial. As it has been decided in this state in Hartman v. Berry (56 Mo. 490), that the mere fact that one is surety upon a bond given to the owner, to protect the property from liens of mechanics, does not estop him from filing and prosecuting such...