Gauss v. Hussmann

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 115
• Parties: HENRY GAUSS, SR., ET AL., Respondents, v. HENRY HUSSMANN, SR., ADMINISTRATOR, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 115

HENRY GAUSS, SR., ET AL., Respondents,

v.HENRY HUSSMANN, SR., ADMINISTRATOR, Appellant.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded with directions.

W. B. THOMPSON, for the appellant: At the date of the death of Hussmann, very little of the materials were delivered, and after that date the defendant became administrator, and no one was authorized to perform, or did perform, his contract, and such contract was ended by his death. Wharton on Contracts, sects. 322-326, and note, and sect. 714; Allen v. Frumet Mining Co., 73 Mo. 688; Phillips on Mechanics' Liens, sect. 62. The petition in this case contains no cause of action against the defendant Rodemann, and there was no evidence of the ownership of Rodemann in the premises, except oral statements of witnesses, whose testimony was incompetent, and the petition fails to set forth, as the basis of the action, any account or contract, as required by law, or the statutory averments essential to protect the lien. Peck v. Bridwell, 6 Mo. App. 453; Lowis v. Cutter, 6 Mo. App. 55; Mc Williams v. Allan, 45 Mo. 573; Jodd v. Duncan, 9 Mo. App. 422; Fay v. Adams, 8 Mo. App. 566. In this last case the petition did not show sufficient facts, and it was held that the lien filed with the petition did not show the facts. It is also held that such a defect can not be cured by a verdict. Heinrich v. Carondelet Gymnastic Society, 8 Mo. App. 588; Codling v. Nast, 8 Mo. App. 573; Kling v. Railway Construction Co., 7 Mo. App. 410. There is no evidence to show any delivery of the items named in lien A or lien B; the proof is silent as to the identity of items. The items delivered under lien B could not continue the lien under lien A. Peck v. Richardson, 2 Mo. App. 600; Edgar v. Salisbury, 14 Mo. 271; Fitzgerald v. Thomas, 61 Mo. 499; Allen v. Frumet Mining Co., 73 Mo. 693.

LAUGHLIN & TAYLOR, for the respondents: It is not the contract, but the doing of work, and the furnishing of materials, which gives the lien right. Fitzgerald v. Thomas, 61 Mo. 499.

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

This action is brought by the plaintiffs as sub-contractors to enforce a mechanic's lien against a building erected for Henry Rodemann, who died pending the action, under a contract between Rodemann and Henry Hussmann, Jr. The petition contains two counts: The first for certain material furnished to the building by the plaintiffs, under a specific contract between them and Hussmann, Jr. The second for a bill of extra materials furnished by them to the building at the special instance and request of Hussmannn, Jr., the principal contractor. For each of these two classes of materials a separate claim of lien was filed. The account, which is embodied in each of these claims of lien, states that the articles were furnished between the third day of October and the twenty-eighth day of December, 1882. It appears that Hussmann, Jr., the principal contractor, died on the twenty-fourth day of November, 1882, while his contract with Rodemann, the owner of the property, was in process of execution, and that a portion of the materials embraced in each claim of lien, was furnished to the building before his death, and a portion after his death. After his death no attempt was made by his administrator to perform the contract, but the mechanics who were at work under him, on the building, went on and completed it, and were paid by Rodemann. The plaintiffs, it seems, continued to deliver materials to the buildings as before, and the dray tickets were signed by some of the mechanics at work on the building.

The case was tried by the court without a jury. The court gave, among others, the following declaration of law: “The court finds that part of the materials furnished were delivered before the death of Hussmann, and as to them, finds in plaintiffs' favor, on first count, for $394.46, and on second count for $41.83, and of lien for said amounts respectively against property described.”

The defendant requested the following declaration of law, which was refused: “The court declares the law to be that the lien alleged to have been filed by plaintiffs is invalid, unless the court, sitting as a jury, shall find, from the evidence, that the same was filed within four months after the delivery of the last item of the account on which the same is based, and that such last item was delivered to the contractor Hussmann before his death, and within four months next before the filing of said lien; or unless the court shall find from the evidence that, in case it shall find that said last item was furnished after the death of said Hussmann, and within four months next before the filing of said lien; that the said material was delivered to the legal representatives of the said Hussmann, and that the said legal representatives accepted the same as delivered under the alleged contract between the plaintiff and said Hussmann, or ratified such delivery as under such contract.”

The office of instructions, in cases tried by the court without a jury, is not to indicate the views of the court as to the facts, but its views as to the law. The first of the above instructions may, however, be regarded as showing that the court took the view of the law that the claim of lien was valid as to so much of the articles as the plaintiffs could show by evidence were delivered by them to the building, prior to the death of Hussmann, Jr., the principal contractor. This was certainly a very erroneous view. Where, in the account filed with a mechanic's lien, there is a mingling together of articles for which the law gives a lien, and articles for which it gives no lien, so that they can not be separated upon a mere inspection of the account, the whole is void; since the owner is entitled to know just how much of the...