Hause v. Thompson

• Decision Date: 31 October 1865
• Citation: 36 Mo. 450
• Parties: WILLIAM HAUSE, Plaintiff in Error, v. B. A. THOMPSON, R. F. BRIDWELL, ____ GRABB, AND HENRY L. BROLASKI, Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 450

WILLIAM HAUSE, Plaintiff in Error,

v.B. A. THOMPSON, R. F. BRIDWELL, ____ GRABB, AND HENRY L. BROLASKI, Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Land Court.

Thompson purchased lumber from Bridwell & Grabb, in payment of which he accepted orders payable in brick. To satisfy his debt, he purchased brick of Hause, the plaintiff, which were delivered at the buildings erected by Bridwell & Grabb for the defendant Brolaski. Thompson not having paid the plaintiff, he filed his lien, which he sought to enforce by this suit. Thompson was served by publication, and failed to answer. The other defendants answered denying any contract with the plaintiff for the purchase and delivery of the brick.

At the instance of the plaintiff, the court gave the following instruction:

1. If the court, sitting as a jury, believe from the evidence that Henry L. Brolaski was the owner of the premises described in plaintiff's petition, and that he contracted with R. F. Bridwell, or Bridwell & Grabb, to furnish brick; that said Bridwell contracted with defendant B. A. Thompson to furnish brick under the arrangement made by Bridwell, or Bridwell & Grabb, with Brolaski; that said B. A. Thompson purchased the amount of brick sued for from plaintiff, and had it delivered by plaintiff at said premises described in the petition, and the same were used in erecting said buildings, and that said plaintiff was never paid for said brick so delivered, then said plaintiff is entitled not only to a general judgment against said B. A. Thompson, but also to a special one against the said buildings, even although it may appear that said defendants Bridwell (or Bridwell & Grabb) and B. A. Thompson were paid in full for the material so delivered by Brolaski, the owner; it, of course, appearing that notice of lien had been duly served, and lien duly filed in time, and suit brought within ninety days after filing the lien.

At the instance of the defendants, the court gave the following instructions:

1. In order to recover in this action, and to bind the property of the defendant Brolaski, it is incumbent upon the plaintiff to prove that the defendant Thompson was a subcontractor under the defendant Bridwell for the erection of, or for the furnishing materials for the erection of the buildings described in the petition, and that the bricks were sold to Thompson and delivered to him upon the credit of the property accruing, from the fact that said...