Halliwell Cement Co. v. Elser

• Decision Date: 15 May 1911
• Citation: 137 S.W. 626,156 Mo. App. 291
• Parties: HALLIWELL CEMENT CO. v. ELSER et al.
• Court: Missouri Court of Appeals

137 S.W. 626

156 Mo. App. 291

HALLIWELL CEMENT CO. v. ELSER et al.

Kansas City Court of Appeals. Missouri.

May 15, 1911.

1. MECHANICS' LIENS (§ 61) — REQUISITES — CONTRACT.

Under the express provisions of Rev. St. 1909, § 8212, it is not sufficient, to establish a mechanic's lien, to prove that the material was furnished for the building, and that it actually went into it, but it must also be shown that the material was furnished to one having a contract with the owner of the building or his agent.

2. MECHANICS' LIENS (§ 71)—CONTRACT WITH HUSBAND OF OWNER.

That a wife knew that her husband had contracted in his own name to erect a house on her land was insufficient to establish that she directed or engaged him to do so for her, or that he was her agent, so as to entitle a materialman to a lien against the house for materials furnished to the contractor operating under such contract.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by the Halliwell Cement Company against Mary Elser and others. From a judgment for plaintiff and against defendant Bradfield for the debt sued on, but denying plaintiff a mechanic's lien on the building of defendant Mary Elser, plaintiff appeals. Affirmed.

Sebree, Conrad & Wendorff and Roy B. Thomson, for appellant. Thurmond & Farrar, for respondents.

ELLISON, J.

Plaintiff furnished material to go into a building and sidewalks in Kansas City, to one Bradfield, who had the contract to erect the building and construct the walks, and this action was instituted under the mechanic's lien statute to enforce a lien for the price of the material. The cause was tried by the court without the aid of a jury, and the judgment was against the contractor for the debt, but a lien was refused against the building. Plaintiff thereupon appealed.

It appears that the property is owned by Mrs. Elser, who is the wife of G. G. Elser, and that the building was erected by Bradfield, as contractor, under a written contract with the husband. Plaintiff's case is based on the theory that the husband was acting for his wife, as an undisclosed principal, and it is sought to hold her property liable to the lien on that ground.

To secure a lien under the mechanic's lien statute, it is not enough that the material be furnished for a building, and that it actually go into the building, but it must also be furnished to one who has a contract with the owner of the building, or his agent. Section 8212, Rev. St. 1909. It is...