Baker v. Smallwood

• Decision Date: 06 February 1912
• Parties: BAKER v. SMALLWOOD et al.
• Court: Missouri Court of Appeals

143 S.W. 518

BAKER v. SMALLWOOD et al.

Kansas City Court of Appeals. Missouri.

February 6, 1912.

1. MECHANICS' LIENS (§ 132)—SUIT TO ENFORCE—PROOF REQUIRED.

A subcontractor was not entitled to enforce a lien, where he failed to prove that the lien was filed within four months after the claim accrued, as required by Rev. St. 1909, § 8217.

2. MECHANICS' LIENS (§ 280)—EVIDENCE—AFFIDAVIT TO ACCOUNT.

An affidavit to a mechanic's lien account is no evidence of the date of accrual of the claim, in a suit to enforce a lien.

3. MECHANICS' LIENS (§ 149)—STATEMENT FOR LIEN—REQUISITES—"JUST AND TRUE ACCOUNT."

Though a subcontractor's agreement fixed his compensation at a lump sum, a mechanic's lien account, filed by him, must be fairly itemized to constitute it "a just and true account," within Rev. St. 1909, § 8217; and hence an account which merely recites "to contract painting house, * * * $180," is insufficient.

Appeal from Circuit court, Jackson County; O. A. Lucas, Judge.

Action by W. C. Baker against W. H. Smallwood and John C. Kroge. Judgment for plaintiff, and defendant Kroge appeals. Reversed and remanded.

M. J. Kilroy, for appellant. Wilcox & Kennedy, for respondent.

JOHNSON, J.

This suit is to enforce a mechanic's lien, filed by a subcontractor, who agreed with the original contractor to do the painting of a residence under construction, according to the plans and specifications, for the lump sum of $180. Judgment was recovered by plaintiff for the full amount of his demand, and a lien was adjudged. The appeal was taken by the owner of the property.

The request of the appealing defendant for an instruction in the nature of a demurrer to the evidence should have been sustained for two reasons: First. No evidence was offered by plaintiff to prove that the indebtedness for which he claimed a lien accrued within four months next preceding the filing of the lien. The statute provides (section 8217, R. S. 1909) that "it shall be the duty of every original contractor within six months, and every journeyman and day laborer within sixty days, and every other person seeking to obtain the benefit of the provisions of this article within four months, after the indebtedness shall have accrued, to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given," etc.

The affidavit to the lien account is not evidence of the date of its accrual; and to entitle a subcontractor to a lien it is just as essential that he introduce proof that his lien was filed within four months of the accrual of the account, as it is to prove that he furnished the material, and that it went into the building. Darlington v. Tozer, 88 Mo. App. 525.

Second. The account filed, so far as it relates to the work done by plaintiff under his original contract...