8 Mo.App. 193 (Mo.App. 1879), Scott v. Cook

Citation:8 Mo.App. 193
Opinion Judge:BAKEWELL, J.
Party Name:PHILIP SCOTT ET AL., Appellants, v. ARTHUR E. COOK ET AL., Respondents.
Attorney:E. T. FARISH, for the appellants, LEE & CHANDLER, for the respondents,
Case Date:December 30, 1879
Court:Court of Appeals of Missouri
 
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Page 193

8 Mo.App. 193 (Mo.App. 1879)

PHILIP SCOTT ET AL., Appellants,

v.

ARTHUR E. COOK ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

December 30, 1879

Where a building contracted to be finished on November 1st was accepted as completed on October 29th, and on December 6th, by direction of the contractor, the subcontractor who had done the painting and glazing put weather-strips on the windows and painted them, held, that this was not a part of the original contract, and would not authorize a lien for work done under the contract, to be filed on March 19th. The subcontractor was bound to take notice of the fact that the house had been completed at the time this work was done.

APPEAL from the St. Louis Circuit Court.

Affirmed.

E. T. FARISH, for the appellants, cited: Putnam v. Ross, 46 Mo. 337; De Witt v. Smith, 63 Mo. 263; Garnett v. Berry, 3 Mo.App. 197; Fitzgerald v. Thomas, 61 Mo. 499; Cantwell v. Massman, 45 Mo. 103; Livermore v. Wright, 33 Mo. 31; Peck v. Richardson, 2 Mo.App. 600.

LEE & CHANDLER, for the respondents, cited: Lutz v. Ey, 3 Abb. Pr. 475; Thompson v. Yates, 28 How. Pr. 142; Henly v. Wadsworth, 38 Cal. 356; Garnett v. Berry, 3 Mo.App. 197; Peck v. Richardson, 2 Mo.App. 600.

OPINION

BAKEWELL, J.

This action is on a mechanic's lien for painting and glazing four houses belonging to defendants I. and J. Meyer, defendant Cook being the contractor. The claim is for a balance due upon one single charge, for doing all the painting and glazing upon these four houses, at the contract price of $1,200, of which $430 has been paid, leaving due $770.

It appears from the evidence that Cook was under contract with the owners to complete the houses by the 1st of November, at the price of $21,800. The houses were to be inspected and accepted by the architect, Grable. Four thousand dollars was to remain on deposit in a bank, not to be drawn out by Cook until the time for filing liens by subcontractors had elasped. These were the terms of the written contract.

On October 27th, Cook, Grable, and the owners went over the houses together, and inspected them. The houses were then accepted as completed according to contract, and the keys were delivered to the owners on October 29th. On March 1, 1878, no notice of lien having been given, the bank, by the direction of the Meyers, paid over the $4,000 to Cook. The...

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