Coen v. Hoffman

• Decision Date: 05 April 1915
• Docket Number: No. 11472.,11472.
• Citation: 175 S.W. 103,188 Mo. App. 311
• Parties: COEN et al. v. HOFFMAN et al.
• Court: Missouri Court of Appeals

175 S.W. 103

188 Mo. A. 311

COEN et al. v. HOFFMAN et al.

No. 11472.

Kansas City Court of Appeals, Missouri.

April 5, 1915.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by W. F. Coen and others against C. O. Hoffman and others. From a judgment for defendants; plaintiffs appeal. Reversed and remanded.

Watson, Gage & Watson, of Kansas City, for appellants. D. H. Cecil and B. N. Simpson, both of Kansas City, for respondents.

ELLISON, P. J.

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 (section 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 lienholder, so long as the property remains in the original ownership, may not accept from the latter a part payment and release a part of the buildings and retain his lien for the balance against the other buildings. Carr v. Hooper, 48 Kan. 253, 29...