Fitzpatrick v. Thomas

• Court: Missouri Supreme Court
• Writing for the Court: HOUGH
• Citation: Fitzpatrick v. Thomas, 61 Mo. 515 (Mo. 1876)
• Decision Date: 31 January 1876
• Parties: DENNIS FITZPATRICK, Respondent, v. JOHN S. THOMAS, Appellant.

61 Mo. 515

DENNIS FITZPATRICK, Respondent,

v.JOHN S. THOMAS, Appellant.

Supreme Court of Missouri.

January Term, 1876.

1. Mechanic's lien--Denial that plaintiff's claim constitutes a lien, has what effect.

Under the late practice act of this State, in suit to enforce a mechanic's lien, a denial that plaintiff's claim constitutes a lien on the land is sufficient to put in issue the liability of the property to be charged with the lien. All other facts necessary to constitute a lien must be specifically denied or they will stand admitted.

2. Mechanic's lien-Materials must actually be used-Apportionment of labor and materials on different buildings.

A material man has no lien upon any building save for the materials which actually enter into its construction. (Simmons vs. Carrier, 60 Mo., 582.) And where several buildings are made under one contract, and it is sought to charge them with mechanics' liens, the amount of work and labor on each must be ascertained and apportioned accordingly.

Cline, Jamison & Day, in support of the motion commented on at length in Dallas Lumber Co. vs. Wasco, 3 Ore., 527; Steigleman vs. McBride, 17 Ill., 300; Rathbun vs. Hayford, 5 Allen, 406; James vs. Hambleton, 42 Ill., 308; Chambers vs. Yarnell, 15 Penn. St., 265; GÅ“pp vs. Gartiser, 35 Penn., 130; Chapin vs. P. & B. Works, 30 Conn., 461; Morris City Bank vs. Rockaway Man'f'g Co., 16 N. J. Chy., 150; and contended that in none of them the court decided that, where the material was furnished for separate buildings, but under the same contract and on the same parcel of ground, or even on contiguous lots where the property when the work was begun, all belonged to the same owner, the lien would be invalid. Counsel cited in support of the motion, Paine vs. Bonney, 6 Abb. Pr., 99; Moran vs. Chase, 52 N. Y., 346; Lander vs. Dester, 106 Mass., 531; Chadbourne vs. Williams, 71 N. C., 444.

It was contended, among other points insisted on, that if buildings erected on different lots but touching each other, so as to form one block, might become the subject of a lien, as intimated by the court in Fitzgerald vs. Thomas, such liability should also attach where they were a row instead of a block, and were separated from each other by a small space.

Schulenburg, contra, contended that the case at bar, and that of Fitzgerald vs. Thomas, were essentially the same in principle; that the allegation of defendant's answer that no lien had been filed as prescribed by law, was sufficient to raise the question on the pleadings, without setting up the matters constituting that defense specially.

Counsel cited in opposition to the motion, Phil. Mech. Liens, § 376; 15 Penn. St., 265; 35 Penn. St., 130; 30 Conn., 861; 16 N. J., 150; and reviewed Matlack vs. Love, 32 Mo., 262; Moran vs. Chase, 52 N. Y., 346; Sanders vs. Dester, 106 Mass, 531; Chadbourne vs. Williams, 71 N. C. 444, insisting that they sustained the decision of the court.

HOUGH, Judge, delivered the opinion on motion for rehearing.

An elaborate brief having been presented in support of the motion for a re-hearing, filed by the plaintiff, and the case being one of importance as well as of apparent hardship, we deem it appropriate to depart from our usual custom in disposing of such motions, and to present in writing our view of the grounds on which the motion is urged.

And we do this notwithstanding the fact that every point argued in the brief now filed, was duly considered and virtually passed upon by us, in the decision heretofore made. That decision was based upon a construction of the statute which seemed to us exceedingly plain and eminently just. In speaking to a profession practiced in the art of making appropriate application of the principles announced in judicial decisions, it did not seem to us necessary to array all the reasons which might have been fairly urged in support of the conclusion reached, or to present all possible or probable inconveniences which might arise from a different ruling, or to undertake to show that our decision was in perfect harmony with every inference, however strained or remote, which might ingeniously be drawn not only from what was said, but from what was omitted to be said, in other decisions of this court. Nor do we propose to do so now. The adoption of such a course in delivering our judgments, would entail upon us a very unusual labor.

The first ground urged for a re-hearing is, that there was no such issue as has been decided; that the pleadings admit the houses to have been built on a single piece or parcel of land. In this counsel are in error. The petition does not allege, and the answer does not admit, that the ground on which the four houses were erected was a single lot or parcel of land. As stated in our opinion, the dimensions of the land were given as if it were one entire tract, but it was not alleged to be a single lot, and there was testimony to show that it comprised several lots.

It is further urged that the reason why plaintiff's claim constituted no lien upon the premises described, should have been stated in the answer. The pleadings on this...