Cole v. Barron

• Decision Date: 30 March 1880
• Citation: 8 Mo.App. 509
• Parties: NELSON COLE ET AL., Respondents, v. SAMUEL BARRON ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 509

NELSON COLE ET AL., Respondents,

v.SAMUEL BARRON ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 30, 1880.

1. Where the petition in an action by a subcontractor to enforce a mechanic's lien alleges generally that one was owner and another original contractor, it is fair to assume that the original contract was with the owner, and, after verdict, such a petition will not be regarded as fatally defective.

2. The omission of the year in the date of an account filed is not fatal to the claim, when the account is otherwise full and explicit as to dates.

3. A verdict finding a mechanic's lien, without naming the parties except in the caption, is sufficient to warrant a judgment against the contractor, where his indebtedness is admitted, and where he is the only defendant against whom a judgment is claimed.

4. The title is not material, and the erection of the house is, in the absence of contrary proof, sufficient to warrant an inference that the owner of the house had such an interest in the land as would warrant a lien.

5. Where improvements are made under a general and informal agreement, without specifications, whether additional work done by order of the owner is done under a new contract is a question for the jury, under proper instructions.

APPEAL from the St. Louis Circuit Court.

Affirmed.

E. J. WHITE, for the appellants: The verdict must find all the issues; it must find either for or against all the defendants, or the judgment predicated upon it will be arrested. Nor will such a defect be helped out by intendment.-- Jewett v. Davis, 6 N. H. 521; Stearns v. Barrett, 1 Mason, 170; Schweickhardt v. St. Louis, 2 Mo. App. 571. There must be an allegation of a contract with the owner.-- Peck v. Bridwell, 6 Mo. App. 451. The omission of the year in the account was fatal to the lien.--3 Phila. 110; Witeman v. Walker, 9 Watts & S. 185. To warrant a lien for additional work, it must be done under the original contract.-- Mead v. Brotherton, 31 Mo. 201; Sawyer v. Railroad Co., 37 Mo. 262, 263; Ellis v. McPike, 50 Mo. 575; Raysdon v. Tumbo, 62 Mo. 38; Schulenburg v. Vrooman, 7 Mo. App. 133; Livermore v. Wright, 33 Mo. 31. The time for creating a lien cannot be extended by intendment or construction, or by the aid of the doctrine of relation, or by attaching one item of account to another, so as to bridge over the lapse of time.-- Spencer v. Barrett, 35 N. Y. App. 97; Phillips v. Duncan, 3 Am. Law Reg. 306; Hubbell v. Schryer, 4 Daly, 383; Holden v. Winslow, 18 Pa. St. 160; Miller v. Batchelder, 117 Mass. 179; Yearsley v. Flanigen, 22 Pa. St. 491; McGilway v. Jarvis, 87 Pa. St. 414; Scott v. Cook, 8 Mo. App. 193.

A. R. TAYLOR, for the respondents: The lien as filed was a substantial compliance with the statute.-- McWilliams v. Allan, 45 Mo. 574; Dewitt v. Smith, 63 Mo. 266; Hassett v. Rust, 64 Mo. 325. The verdict was a complete response to the issue.-- Caldwell v. Stephens, 57 Mo. 589.

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

This was an action by the subcontractor against contractor and owner, to establish a mechanic's lien. There was a verdict and judgment for plaintiffs.

Defendants moved in arrest of judgment, on the ground that the petition does not set forth facts sufficient to constitute a cause of action, and also that the verdict does not find all the issues.

1. The petition alleges that “plaintiffs are, and at the times hereinafter named were, partners in business under the firm-name of Cole & Glass; that at said times Herman Konert was the owner of the lot and building hereinafter described, and Samuel Barron was the original contractor for the erection of the building and improvements hereinafter mentioned; that plaintiffs, as such firm, at the special instance and request of said Barron, contractor as aforesaid, sold and delivered to him as such original contractor, for the purpose of being used in the erection of the building hereinafter described, material, the value, prices, and times of delivery of which are stated in the account as follows.” Then follows an itemized account, with dates and prices. The dates range from June 20, 1877, to September 29, 1877, when the last items were furnished. The petition then proceeds with the other necessary allegations.

It is contended that there is here no allegation of a contract between Barron and the owner of the building. The allegation is that Konert was the owner of the building, and Barron original contractor for its erection. It is a fair and reasonable implication that the original contract was with the owner. In fact, any other contract for its erection must have been a subcontract. It is said that there is no allegation that Konert was owner at the date of the contract. The reference to the dates in the bill of particulars seems to be explicit enough. The petition is sufficient, we think, to sustain the verdict. The case is not at all like Porter v. Tooke, 35 Mo. 107, or Peck v. Bridwell, 6 Mo. App. 451. In each of those cases there was no allegation at all as to the ownership of the building--a substantial omission, which was not aided by verdict.

2. It is objected that the account filed in the clerk's office as the foundation of the lien states no time at which the materials were furnished. The account is full and particular, and marks the months and days of the month; but the year is omitted. As to this there could be no mistake. If the items were over four months old, the right to a lien was gone. We are referred to a Pennsylvania case in which the omission of the year has been held fatal to the lien. But the Pennsylvania statute expressly requires that the dates should be given in the claim filed. Rehrer v. Zeigler, 3 Watts & S. 258. Our statute requires “a just and true account.” If the days of the month are given at which each item is furnished, the account, so far, is “just and true” within the meaning of the statute, and every object of the law in this respect is fulfilled.

3. The verdict, after giving the style of the case in full, with the names of all the parties, was as follows: “We, the jury, find the plaintiffs are entitled to a mechanic's lien, and assess their damages at the sum of $565.81.”” This, it is said, is no finding as to defendant Barron, the contractor; and we are referred to Schweickhardt v. St. Louis, 2 Mo. App. 583. But that was a very different case. There the jury found against some defendants by name, and said nothing as to others. Here, there was only one defendant against whom judgment could be entered, and the lien against the property could not be given unless plaintiffs were entitled to a judgment against him. The verdict, in effect, says that Barron owed ...