O'Connor v. Current River R. Co.

• Decision Date: 01 July 1892
• Citation: 20 S.W. 16,111 Mo. 185
• Parties: O'Connor, Appellant, v. The Current River Railroad Company et al
• Court: Missouri Supreme Court

20 S.W. 16

111 Mo. 185

O'Connor, Appellant, v. The Current River Railroad Company et al

Supreme Court of Missouri, Second Division

July 1, 1892

Appeal from Carter Circuit Court. -- Hon. J. G. Wear, Judge.

Affirmed.

C. D Yancey for appellant.

(1) The proceeding is to enforce a lien under the provisions of article 4 of chapter 47 of the Revised Statutes of 1879. Section 3207 of the same article prescribes the rules of pleading, practice, process and other proceedings in cases arising under said article; there is no difference between such a petition as this and a petition on an account for goods sold and delivered, excepting only the additional allegations with reference to the lien. Tried by this standard, the petition is certainly good. (2) The objections urged in the second ground of demurrer, that William O'Connor & Co. were subcontractors under J. S. McTighe & Co., and that O'Connor & Co. sold their interest in the work performed to William O'Connor, it is submitted, do not constitute grounds of demurrer, section 2043, Revised Statutes, 1889; nor does the matter referred to affect the sufficiency of the pleading, section 2039, Revised Statutes. (3) The objections in the fifth paragraph of the demurrer that the statements of account for work done on various sections of the roadbed are blended in one notice and statement of account and petition, is no ground of demurrer. If the plaintiff has improperly mingled in one count of his petition matters which might be properly set forth in different counts, the remedy is not by way of demurrer, but by motion to elect. Otis v. Bank, 35 Mo. 128; Mulholland v. Ropp, 50 Mo. 42; 80 Mo. 367.

Wallace Pratt and Olden & Orr for respondents.

(1) The statute which gives a mechanic a lien is in derogation of the common law, and a lien can be established only by a clear compliance with the requirements of the statute. Jones on Liens, sec. 1587; Baily v. Johnson, 1 Daly (N. Y.) 61; Porter v. Miles, 67 Ala. 130; Chafflin v McFaddin, 41 Ark. 42; Belanger v. Hersey, 90 Ill. 70; Foster v. Poillon, 2 E. D. Smith, 556; Cronkright v. Thomson, 1 E. D. Smith, 661. (2) The weight of authority seems to be against the right to assign a claim for a lien, before it is perfected under the statute by the party originally entitled thereto. 2 Jones on Liens, secs. 1493-4; Davis v. Bilsland, 18 Wall. 659; Brown v. Harper, 4 Ore. 89; Bank v. Day, 52 Iowa 680; Pearsons v. Tincker, 36 Me. 384; St. John v. Hall, 41 Conn. 522; Ruggles v. Walker, 34 Vt. 468. (3) The petition fails to allege the filing of any account as to the work done on sections 55 and 56. If the plaintiff is not entitled to assert the lien as assignee, then his whole claim as to defendant railroad company must fall under the authority of: Murphy v. Murphy, 22 Mo.App. 18; Gauss v. Hussmann, 22 Mo.App. 115; Blakey v. Blakey, 27 Mo. 39; Edgar v. Salisbury, 17 Mo. 271; Kershaw v. Fitzpatrick, 6 Mo.App. 575; Nelson v. Withrow, 14 Mo.App. 270.

OPINION

Gantt, P. J.

This is an action in the circuit court of Carter county to enforce a lien on the Current River railroad for certain work and labor done in the construction thereof.

The petition, omitting caption, is as follows: "The plaintiff states that the defendant is a railroad corporation, duly incorporated and existing under and by virtue of the laws of the state of Missouri, and as such corporation owns and operates a railroad from Willow Springs, in Howell county, to a point called Grandin, in Carter county, Missouri; that the said corporation owns a large lot of rolling stock, depot grounds and buildings, together with the roadbed and right of way through the said counties between the points above named, which are used by the said corporation for its said railroad. Plaintiff avers that the defendant corporation some time prior to the fifteenth day of July, 1887, made a contract with J. S. McTighe & Co., a firm composed at that time of J. S. McTighe and Isaac L. McKee, by which the said McTighe & Co. were to construct and build the roadbed of the said railroad embraced in sections 46, 50, 54, 55, 56, 57 and 60, as shown by profile on file in the office of the clerk of the county court within and for the county of Carter in the state of Missouri; that each of said sections is one mile long, and all situated in Carter county, Missouri.

"That, after making the said contract, said J. S. McTighe & Co. contracted with Wm. O'Connor & Co., a firm composed of Wm. O'Connor, J. S. McTighe, Isaac L. McKee and M. Holden, by which contract the said Wm. O'Connor & Co. were to grade and build said sections 55 and 56 of said railroad.

"That, in pursuance of said agreement last named, the said Wm. O'Connor & Co. did, on the fifteenth day of July, 1887, begin the work and labor of building and constructing the said railroad bed on said sections 55 and 56, and completed the same on the sixteenth day of April, 1888, and which roadbed on said sections 55 and 56 were by the said railroad company, herein defendant, received and accepted.

"The said defendant corporation by its contract with said J. S. McTighe & Co. agreed to pay to said J. S. McTighe & Co. the following prices for work and labor to be performed in building and constructing said roadbed on sections 55 and 56, viz.: For clearing and grubbing right of way, $ 32 per acre; for earth excavation, twenty-nine cents per cubic yard; for overhaul, two and five-tenths cents per cubic yard; for loose rock, forty-two cents per cubic yard; for solid rock, ninety-two cents per cubic yard; for ballast, ninety-two cents per cubic yard; for riprap, $ 1.25 per yard.

"That in the building and constructing said section 55 said firm of Wm. O'Connor & Co. grubbed twelve acres of land at $ 32 per acre, $ 380; earth excavation, ten thousand, nine hundred and thirty-five cubic yards, at twenty-nine cents per yard, $ 3,171.15; overhaul, twenty thousand, seven hundred and thirteen cubic yards at two and five-tenths cents, $ 517.32; loose rock, four hundred and fifty cubic yards, at forty-two cents, $ 189; solid rock, ninety-nine hundred and three cubic yards, at ninety-two cents, $ 612.72; riprap, thirty-six and five-tenths cubic yards, at $ 1.25, $ 45.62; to building county road, $ 75.

"In building, constructing and grading said section 56, said Wm. O'Connor & Co. cleared and grubbed eleven and three-tenths acres of land, at $ 32 per acre, $ 361.66; earth excavation, twenty-seven hundred and seventy-eight cubic yards, at twenty-nine cents, $ 2,299.12; loose rock, three hundred and five cubic yards, at forty-two cents, $ 128; solid rock, twenty-six thousand three hundred and sixty-nine cubic yards, at ninety-two cents, $ 24,259.48; ballast, nine hundred and sixty-three cubic yards, at ninety-two cents, $ 885.96; sidetrack, five hundred and twenty-seven cubic yards, at twenty-nine cents, $ 153.41; grubbing sidetrack, $ 16; clearing Pike Creek, $ 138.60; total, $ 42,349.90; credit, $ 15,186; balance due, $ 27,163.90.

"That the same prices as above set forth were agreed by J. S. McTighe & Co. to be paid to Wm. O'Connor & Co. for the work and labor to be done.

"That, on the second day of April, 1888, the plaintiff, William O'Connor, of the firm of Wm. O'Connor & Co., aforesaid, purchased all the right, title, debt, demand and interest of the said Wm. O'Connor & Co., and of the said J. S. McTighe, Isaac L. McKee and M. Holden, plaintiffs, partners in the firm of William O'Connor & Co., in and to their right, claim and demand for and on account of the work and labor done on sections 55 and 56, aforesaid, and that plaintiff is now the sole owner of said debt, claim and demand.

"That, prior to the sixteenth day of April, 1888, the said J. S. McTighe & Co. contracted with this plaintiff by which plaintiff was to do the following labor in completing and finishing the roadbed of the said railroad as follows: Section 57, to riprapping one hundred and eighteen yards, at $ 1.25, $ 147.50; section 60, to riprapping two hundred and eight yards, at $ 1.25, $ 260; section 54 to riprapping three hundred and thirty-seven yards, at $ 1.25, $ 421.25; section 46, to riprapping one hundred yards, at $ 1.25, $ 125; section 50, to finishing work on roadbed, $ 200; total, $ 1,153.75.

"Plaintiff avers for the purpose of securing a lien on said railroad, that, within ninety days after the completion of said work and labor, aforesaid, he filed in the office of the clerk of the circuit court of Carter county, Missouri, a county through which said railroad is located, verified by his own affidavit, a just and true account of the amount due him by J. S. McTighe & Co., after all just credits had been given, which account stated the amount claimed as due, the general value of the work, the amount of labor performed, the dates when the work and labor was done and performed, the names of the parties with whom the contract for said work was made, viz., the aforesaid J. S. McTighe & Co., and also the said road, the Current River Railroad Company, a corporation organized and existing under and by virtue of the laws of the state of Missouri, against which said lien is intended to apply; that plaintiff within said ninety days did serve a copy of said account on the defendant corporation.

"Plaintiff avers that there is now due him for the work and labor done and performed as hereinbefore stated the sum of $ 28, 313.65.

"Wherefore plaintiff asks judgment against the defendant corporation for the said sum of $ 28,313.65, together with interest and costs of suit, and that said amount be declared a lien upon said railroad, against its rolling stock, depot houses and grounds, roadbed, sidetracks, etc., or enough thereof to satisfy said judgment, interest and costs, and for other proper relief."

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