Coen v. Hoffman
| Decision Date | 05 April 1915 |
| Citation | 175 S.W. 103,188 Mo.App. 311 |
| Parties | W. F. COEN, et al., Appellants, v. C. O. HOFFMAN, et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.
Judgment reversed and cause remanded.
Watson Gage & Watson for appellants.
(1) The petition states all the facts sufficient to constitute a cause of action for the enforcement of a mechanic's lien. Sec. 8220, R. S. 1909; Heitzell v. Langford, 33 Mo 396; Hill v. Price, 81 Mo.App. 456; Bradish v James, 83 Mo. 313. (2) The pleadings in this case show that the ground upon which the five houses were erected was owned by the defendant, Hoffman; that the lots and parts of lots were contiguous; and that the buildings were erected under one general contract; and that there was a certain amount due and unpaid, and that the lien was filed in due time; and it is alleged that the lien contained a true statement of the account and a true discription of the property. This was all that the law required to be stated. The mechanic's lien is not before the court, and, therefore, what it contains cannot be reviewed in this action, but the sufficiency of the mechanic's lien can only be raised when it is introduced in evidence. See case, Hill v. Price, supra.
D. H. Cecil and B. N. Simpson for respondents.
(1) Demurrer admits the facts, but not the conclusions of law. Blaine v. Knapp & Co., 140 Mo. 241. (2) Appellants having voluntarily severed their lien account and released the three houses, cannot now recover against the other two. Schulemberg v. Vrooman, 7 Mo.App. 133. (3) Especially so where rights of third parties have intervened. Kick v. Doeste, 45 Mo.App. 134.
Plaintiff furnished building material to defendant Hoffman under one general contract for the erection of five separate buildings upon five contiguous lots in Kansas City, the account therefor amounting to $ 963.91, on which was paid $ 135.75, leaving a balance of $ 828.16. In due time plaintiff filed his lien paper for such balance. After filing this lien, or at least, after furnishing the material, the title to these tracts changed, Tutt becoming owner of one and Jennie Butler of another. Afterwards other payments, aggregating $ 518.90 were made, leaving a final balance of $ 309.26. These payments purport to have been made and applied on three of the buildings and tracts, thus leaving nothing credited on the two owned by Tutt and by Butler. Afterwards, in due time, this action was brought to enforce a lien against the latter two buildings and tracts for the final balance just referred to. All persons in interest were made parties, including Tutt and Butler, and they each filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action.
The particular ground specified for the demurrer is that the lien was made invalid by dividing the payments made and crediting separate amounts on the other three buildings and releasing them. Otherwise the petition, we think, was sufficient in all respects; and we will therefore direct our attention to the specific point of the demurrer.
The statute (Sec. 8237, R. S. 1909) permits one single lien to be enforced against two or more separate buildings on contiguous lots, when such buildings are erected under one general contract. In such case the lien is a single claim existing against each building, or part, or all of them. There is no reason why the lien holder, so long as the property remains in the...
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