46 Mo. 337 (Mo. 1870), Putnam v. Ross

Citation:46 Mo. 337
Opinion Judge:CURRIER, Judge.
Party Name:JOHN G. PUTNAM AND T. N. STEVENS, Defendants in Error, v. DANIEL ROSS, J. C. MEDSKER, AND J. H. ARDINGER, Plaintiffs in Error.
Attorney:Twiss & Medsker, for plaintiffs in error A. A. Tomlinson, and Ewing & Smith, for defendants in error.
Judge Panel:Judge Bliss concurs; Judge Wagner not sitting.
Court:Supreme Court of Missouri
 
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Page 337

46 Mo. 337 (Mo. 1870)

JOHN G. PUTNAM AND T. N. STEVENS, Defendants in Error,

v.

DANIEL ROSS, J. C. MEDSKER, AND J. H. ARDINGER, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1870

Error to First District Court.

Twiss & Medsker, for plaintiffs in error, urged among others the following points:

I. The statute creating the lien is in derogation of the common law, and must be strictly complied with by every person who asserts a claim of right under it. " And any ambiguity in any proceeding necessary on the part of the party seeking to enforce the lien, must operate against the party making it." ( Wade v. Rutz, 18 Ind. 307; Lynch v. Cronan, 6 Gray 531; Schulenberger v. Bascom, 38 Mo. 188.)

II. Plaintiffs allege the giving of notice of debt due from Daniel Ross, and attempt to support this allegation by proof of notice of debt due from a copartnership known by the name and style of Messrs. Ross & Shane. ( Russell v. Bell, 44 Penn. 47.) Ross and Shane had formerly been partners, but had dissolved, and Shane had nothing to do with the transaction. The suit was not against Shane at all, and plaintiffs had no cause of action against him. ( Hauptman v. Catlin, 3 E. D. Smith, 666; Tibbetts v. Moore, 23 Cal. 208; Peck and Wife v. Hensley, 21 Ind. 344.)

A. A. Tomlinson, and Ewing & Smith, for defendants in error.

OPINION

CURRIER, Judge.

This suit was brought to enforce a mechanic's lien for material furnished by the plaintiffs to the original contractor. In giving the owners notice of their claim, the plaintiffs stated the indebtedness to be due from " Ross & Shane, contractors." It turned out that the claim was against Ross alone, his former partner, Shane, having no interest in the transaction. The defendants insist that the error in the notice is fatal to the plaintiffs' lien. Whether or not it is so, is the question for determination.

The defendants' view seems to be founded upon the theory that the mechanics' lien enactment is in derogation of the common law, and that its provisions are therefore to be construed with a rigid strictness against those who seek to avail themselves of its intended benefits. There may be decisions which lend support to that theory, but the better opinion is that the provisions of the mechanics' lien law should be interpreted so as to carry out the object had in view by the Legislature in...

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