Feeny v. Rothbaum

• Decision Date: 01 May 1911
• Citation: 155 Mo. App. 331,137 S.W. 82
• Parties: FEENY et al. v. ROTHBAUM.
• Court: Missouri Court of Appeals

137 S.W. 82

155 Mo. App. 331

FEENY et al. v. ROTHBAUM.

Kansas City Court of Appeals. Missouri.

May 1, 1911.

1. MECHANICS' LIENS (§ 149) — ACCOUNT— SUFFICIENCY.

In the account of a subcontractor for the plumbing in defendant's house, items "Water Company, $4.75; lead in street, $7.50," and "Laborers' time, $25.00," are too indefinite to be the basis of a mechanic's lien, since the owner is entitled to be informed by the account as to the nature of the items.

2. MECHANICS' LIENS (§ 31)—IMPROVEMENTS OF STREETS—APPURTENANCES.

Under the mechanic's lien law, one furnishing lead to connect a house with pipes in the street may have a lien on the house.

3. MECHANICS' LIENS (§ 51)—IMPROVEMENTS OF STREETS—LICENSES.

Under Rev. St. 1909, § 8212, giving a mechanic's lien for work or labor done or materials, fixtures, engine, boiler, or machinery furnished, a plumber is not entitled to a lien to compensate him for payments made to the municipality for a license to open a street to make connections from a house to water mains.

4. PLEADING (§ 433) — OBJECTIONS AFTER VERDICT—PETITION.

Where a petition for a mechanic's lien alleged that within four months after the account "became due" the lienor filed a statement, etc., and there was no objection made to the petition at or before trial, it is sufficient after verdict, although the statute requires the statement to be filed within four months after the account "accrued."

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Martin Feeny and others against Isadore Rothbaum. From a judgment for plaintiffs, defendant appeals. Affirmed on condition.

Vinton Pike and B. M. Achtenberg, for appellant. John D. McNeely and B. J. Casteel, for respondents.

ELLISON, J.

The petition alleges that plaintiff's compose a partnership in the plumbing business in the city of St. Joseph, and as such were subcontractors in furnishing material and labor in putting in the plumbing in defendant's house, and this action is to enforce a mechanic's lien therefor. The judgment in the trial court was for the plaintiffs.

The account is composed of a number of items not objected to, aggregating, with those complained of, the sum of $467.20. Those complained of are as follows:

                Water Company, $4.75; lead in street
                 $7.50 ..................................    $12 25
                Cleanouts and ferrils....................      2 50
                Plumbing permit, $5.00; sewer and water
                 permit, $2.00...........................      7 00
                Hangers, screws, gasoline, putty, etc....      5 00
                Laborers' time ..........................     25 00
                Plumbers' time ..........................     80 00
                Drayage .................................      5 00
                Putting in two floor drains in basement       12 00
                Galv. vent and fittings..................      7 00
                

The items "Water Company, $4.75," and "lead in street, $7.50," are so indefinite and unspecific as to be improper as against the owner in a bill by a subcontractor with whom the owner has not dealt, and who must get his information from the account. The same may be said of the item "Laborers' time, $25.00." There was necessarily much labor of different kinds. It was explained in evidence that this particular item was for digging in the street to connect pipes. If so, it should appear in the account. If the face of the account showed that the labor could refer to but one thing, it would be a different question. Rude v. Mitchell, 97 Mo. 365, 11 S. W. 225; O'Shea v. O'Shea, 91 Mo. App. 221, 231; Kern v. Pfaff, 44 Mo. App. 29, 34.

In Henry v. Plitt, 84 Mo. 237, McDermott v. Class, 104 Mo. 14, 15 S. W. 995, and Mo. Valley Stone Co. v. Brown, 50 Mo. App. 407, it was held that fences and...