Hause v. Carroll

• Decision Date: 31 March 1866
• Citation: Hause v. Carroll, 37 Mo. 578 (Mo. 1866)
• Parties: WILLIAM HAUSE, Defendant in Error, v. JOHN CARROLL, IMPLEADER, &C., Plaintiff in Error.
• Court: Missouri Supreme Court

37 Mo. 578

WILLIAM HAUSE, Defendant in Error,

v.JOHN CARROLL, IMPLEADER, &C., Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1866.

Error to St. Louis Land Court.

McClure and Wickham, for plaintiff in error.

The defendant in error in this case is not entitled to a lien against the property of the plaintiff in error, Carroll:

1. For there was no contract between him and Carroll, the owner of the land. The petition and evidence both show that the bricks in question were sold by defendant in error to one Thompson, who had no contract with Carroll, but, on the contrary, sold the bricks as an article of merchandise to Bridwell, and was paid for them; Bridwell afterwards furnished the bricks to Hockham & Fenn, the contractors, and he alone, if any one, is entitled to a lien for them-- Porter et al. v. Tooke et al. 35 Mo. 107; Steinmetz v. Boudinot, 3 S. & R. 541; Hills v. Elliot, 16 S. & R. 56.

2. There was no privity of contract between the defendant in error and the plaintiff in error, Carroll. All liens must be founded upon contracts, direct or indirect, express or implied, with the owner of the estate sought to be charged--Clark v. Brown, 25 Mo. 560; Squires v. Fithian, 27 Mo. 138; Harlan v. Rand, 27 Pa. 515; Consociated Pres. Society v. Staples, 23 Conn. 559; Id. 637; 17 Wend. 550, 395; 26 Miss. 126.

3. There is no evidence in the record to show that notice of this lien was given to plaintiff in error, Caroll, at least ten days before the filing of the lien--Heltzell v. Hynes, 35 Mo. 482; Schubert v. Crowley, 33 Mo. 564.Peacock, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The point made in this case by the plaintiff in error, as to the sufficiency of the notice, cannot be urged in this court, as no objections were made to it in the court below. There was an averment in the petition, that the statutory notice was given preparatory to filing the lien, and the court, as the trier of the fact, was the appropriate tribunal to judge whether the evidence supported the averment. A party seeking to enforce a mechanic's lien upon a building, must show that he furnished the materials for the building, under a contract either with the owner of, or the contractor, for the building--Hause v. Thompson et al., 36 Mo. 450. There was evidence tending to prove that Thompson, one of the defendants, purchased the bricks of the plaintiff for Carroll's house, and that they were received by the contractors; but in what capacity he purchased them does not appear by the witness. There was evidence also going to show that he bought them absolutely of the plaintiff, on his own individual responsibility, and then sold them...