Raeder v. Bensberg

• Decision Date: 21 January 1879
• Parties: F. W. RAEDER, Respondent, v. CATHERINE BENSBERG ET UX., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 445

F. W. RAEDER, Respondent,

v.CATHERINE BENSBERG ET UX., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 21, 1879.

An architect has no lien for his services in drawing plans and specifications, and giving general directions to the builder under whose special superintendence the building was erected.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

GEORGE W. TAUSSIG, for appellants: An architect is not entitled to a lien for his services as such.-- Steadman v. Hockley, 15 L. J. (Exch.) 332; Stryker v. Cassidy, 17 N. Y. 18; Foushee v. Grigsby, 12 Bush, 75; Railroad Co. v. Leupper, 84 Pa. St. 168; Edgar v. Salisbury, 17 Mo. 271; Knight v. Morris, 19 Minn. 475; Ames v. Dyer, 41 Me. 397.

HORATIO D. WOOD, for respondent: Under our statute relating to mechanics' liens, an architect who designs and superintends the erection of a building has a lien thereon.-- Bank v. Gries, 35 Pa. St. 423; Insurance Co. v. Rowland, 26 N. J. 397; Mulligan v. Mulligan, 18 La. An. 20; Knight v. Norris, 13 Minn. 475.

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

This was an action to establish a mechanic's lien against certain houses erected upon a lot owned by Catherine Bensberg, the wife of her co-defendant, Gerhard Bensberg. There was a verdict for plaintiff, and the claim was found to be a lien on the property of Catherine Bensberg described in the petition, and judgment accordingly; from which defendants appeal.

The petition states that Catherine Bensberg, through her husband as her agent, employed plaintiff to design and superintend the erection of the building described; that plaintiff completely designed and superintended the erection thereof, for which, by agreement, he was to receive five per cent upon the total cost of the house. The testimony showed that plaintiff was an architect; that he designed and superintended the building, and was to be paid a commission for doing so; that the plans were made by him; that the buildings were erected by one Eberly, who was the contractor for their erection; that plaintiff visited and inspected the house when the contractor reported it completed, and approved the work, and made out a certificate for the last payment. The account was rendered by plaintiff, and the lien filed for his services as architect in designing and superintending the erection of the building.

Many points are made by appellant. Amongst others, the question whether a lien for such a claim can be had under our law of mechanics' liens is properly saved by the instructions, and will be first examined. If it is found that no lien is given for such services, that is decisive of the case, and any further statement of the case, or consideration of other points presented by the record is unnecessary.

The question is one which has not been judicially determined in Missouri. In Edgar v. Salisbury, 17 Mo. 271, it was decided that an agent employed to disburse money and pay off hands in the building of a house has no lien for his services, and that the statute was designed to protect a different class of persons from those agents employed in paying laborers and material-men, and charging a commission for such services. But the court expressly says that it does not decide the question whether an architect who superintends the erection is entitled to a lien; and that because the point does not necessarily arise in the case.

The act provides (Wag. Stats. 907, sect. 1) that “Every mechanic or other person who shall do or perform any work or labor upon, or furnish any materials, fixtures, engine, bolier, or machinery for, any building, erection, or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner, or his agent, trustee, contractor, or subcontractor, shall have for his work or labor done, or materials, fixtures, engine, boiler, or machinery furnished, a lien,” etc.

The policy of the law is to construe the law liberally as to the enforcement of the remedy, where it is clearly given; and the courts discourage an unfriendly strictness in construing the act against those classes whom it is the obvious design of the law to protect. DeWitt v. Smith, 63 Mo. 263. But it is not the policy of the law to enlarge the scope of the act by construction, so as to extend its beneficial provisions to classes of persons not clearly entitled to its benefits. Baldwin v. Merrick, 1 Mo. App. 281. It seems clear enough that an architect is not a mechanic, and that he cannot be said to “do or perform any work or labor upon a building” when he draws and designs the plans according to which it is constructed. The statute, whilst it speaks of mechanics and other persons who perform work or labor upon a building, plainly does not include men of the learned professions who contribute by work not at all mechanical towards its erection. The rule in the construction of statutes is that, when general words follow particular words, the general words are applied to the things or persons particularly mentioned. So a statute treating of persons or things of an inferior rank cannot by general words be extended to those of a superior class. Dwar. on Stat. 656. The words “mechanics or other persons,” according to this rule, mean other persons ejusdem generis.

The New York statute gives the lien to “any person who shall perform any labor * * * in building * * * any house,” etc. It is held that these words do not give a lien to one who as an architect superintends the erection of a house. Stryker v. Cassidy, 17 N. Y. 18. Where a charter provided that stockholders should be liable for debts due their “laborers and operators for services performed for the corporation,” it was held ( Ericsson v. Brown, 38 Barb. 391) that these words did not cover services rendered by a consulting engineer, and were not designed to protect professional men.

Under a statute in Maine which gives a lien to “any ship-carpenter, caulker, blacksmith, joiner, or other person who shall perform labor or furnish materials for or on account of any ship,” it is held that no lien is given to one who furnishes the plans by which the ship is constructed. Ames v. Dyer, 41 Me. 397. In Sweet v. James, 2 R. I. 270, under a statute giving a lien to “any...