Hartman v. Berry

• Decision Date: 31 March 1874
• Citation: 56 Mo. 487
• Parties: L. A. HARTMAN et al., Respondents, v. GEORGE W. BERRY, et al., Appellants.
• Court: Missouri Supreme Court

56 Mo. 487

L. A. HARTMAN et al., Respondents,

v.GEORGE W. BERRY, et al., Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Slayback & Hæussler, for Appellants.

Bereman & Smith, for Respondents.

I. It is no defense to my action upon your note for you to plead that you hold my covenant not to sue you upon said note, and therefore I ought not to have and maintain my action. (Atwood vs. Lewis, 6 Mo., 392; Bircher vs. Payne, 7 Mo., 462; Bond vs. Worley, 26 Mo., 253.)

ADAMS, Judge, delivered the opinion of the court.

This was an action under the mechanics' lien law, brought by the plaintiffs, as lumber men, for a balance due for lumber furnished the defendant, George W. Berry, contractor, under a contract by him with one Anna Griswald and her husband, L. M. Griswald, for building a row of eight houses in St. Louis. During the progress of the buildings the defendant, Humphreys, purchased the property under a deed of trust, which had been made by the Griswalds to secure a debt to one Maria E. Bates.

The petition is in the usual form. The defendant Berry made no defense, and judgment by default was rendered against him as contractor. The defendant, Humphreys, as owner of the property filed an answer traversing all the material allegations of the petition. The answer then proceeds to set up new matter in the following words: “And defendant, for a more full and perfect answer herein, avers the truth to be, that long prior to the time of his purchasing the premises in controversy, to-wit: On the 15th of September, 1871, and whilst said buildings were being erected, the plaintiffs herein, as sureties for defendant Berry, and in consideration that said Griswalds, the owners, would raise money for said Berry on said property, then and there undertook and agreed, that they and the said Berry would deliver to said Griswalds, when completed, all of said buildings in the petition described, free from all mechanics' liens and other indebtedness of whatever character, growing out of the erection of the same, or in any way appertaining thereto, and then and there made, executed and delivered to one Maria E. Bates a certain bond in the words and figures following, to-wit: “Know all men by these presents, we, George W. Berry, principal, and L. A. Hartman and W. Graham as surety, all of the City and County of St. Louis, and State of Missouri, are firmly bound unto Maria E. Bates, of the same City, County and State, in the just and full sum of ten thousand dollars. The following are the conditions of this bond: Geo. W. Berry having contracted to build eight two story brick dwelling houses on the east side of Twelfth street between Spring and Wright streets, in city block No. 1127, in City of St. Louis, State of Missouri, for Anna Griswald, for the sum of eleven thousand dollars, according to plans and specifications previously adopted and signed between said Berry and Griswald, in furtherance of which Maria E. Bates has loaned to said Anna Griswald the sum of six thousand dollars, secured by deeds of trust on said premises; three thousand dollars of said amount has been paid to her, and the remaining three thousand dollars is to be paid to the contractor as the work progresses on said buildings, in the following instalments, to-wit: When the cellars are excavated, and cellar walls are made, and joists laid thereon one thousand dollars is to be paid; and when the first story is up and joists laid, one thousand dollars more is to be paid, and the remaining one thousand dollars, when the buildings are entirely completed and finished, according to the plans and specifications heretofore adopted; and a copy of said plans and specifications are in the hands of said Berry. Now if the said Berry as principal, or said Hartman or Graham as sureties, shall deliver to said Griswald when completed, all of said buildings heretofore mentioned free from all mechanics' liens and other indebtedness of whatever character growing out of the construction of the same or in any way appertaining thereto, then this obligation to be null and void, otherwise to remain in full force and effect.

In testimony, whereof we have hereunto set our hands and seals.

Geo. W. Berry. [SEAL.]

L. A. Hartman. [SEAL.]

Wm. Graham. [SEAL.]

And defendant avers, that, upon the delivery of said bond, said Bates did loan the money specified in said agreement; that this defendant thereafter purchased said property and...