Hengstenberg v. Hoyt

• Decision Date: 28 November 1904
• Citation: 109 Mo. App. 622,83 S.W. 539
• Court: Missouri Court of Appeals
• Parties: HENGSTENBERG et al. v. HOYT et al.

83 S.W. 539

109 Mo. App. 622

HENGSTENBERG et al. v. HOYT et al.

Kansas City Court of Appeals. Missouri.

November 28, 1904.

MECHANIC'S LIEN — CONTRACT — DEMURRER TO EVIDENCE.

1. The basis of the lien of a materialman or subcontractor for improvements on land being the contract between the landowner and the contractor (Rev. St. 1899, § 4203), where the evidence in an action to enforce such lien fails to show such a contract a demurrer to the evidence should be sustained.

Appeal from Circuit Court, Maries County; James E. Hazell, Judge.

Action to enforce a mechanic's lien by H. D. Hengstenberg and others against W. F. Hoyt and another. From a judgment for plaintiffs, defendants appeal. Reversed.

W. S. Pope, for appellants. John O. Holmes and Leslie B. Hutchinson (Crites & Garrison, of counsel), for respondents.

SMITH, P. J.

This is an action to enforce a mechanic's lien. The petition alleged, and the answer denied, that plaintiffs furnished the materials specified in their lien account for repairing and plastering a certain hotel building situate upon certain land (describing it) of which the defendant Mrs. Jones was the owner under and by virtue of a contract with defendant Hoyt, who was the contractor with the defendant Mrs. Jones for making said hotel improvement. The theory of the mechanic's lien law is founded upon contract. By no other means can one man justly and legally acquire a claim upon the property of another. Every building contract is made with reference to the existing law, which thus becomes incorporated with its terms. The owner's contract with the builder empowers the latter to procure materials from the materialman, who thus, in his secondary position, is placed in a contract relation with the owner. The materialman or subcontractor derives all his claims from the original contract, and to the terms of which he must look for the extent and limits of his capacity to fasten a lien on the land. A mechanic's lien is only given where the work is done or materials furnished by virtue of a contract with the owner of the improved land, or with his contractor or subcontractor, Rev. St. 1899, § 4203; Duross v. Broderick, 78 Mo. App. 260, and cases there cited; Lumber Co. v. Myers, 87 Mo. App. 671; Richardson v. O'Connell, 88 Mo. App. 12; Range Co. v. Jeffers, 79 Mo. App. 174. It is thus seen that when it is sought to establish a lien, as here, for materials furnished by the materialman or subcontractor under a contract with the...