Hengstenberg v. Hoyt

• Decision Date: 28 November 1904
• Citation: 83 S.W. 539,109 Mo.App. 622
• Parties: H. D. HENGSTENBERG et al., Respondents, v. W. F. HOYT et al., Appellants
• Court: Kansas Court of Appeals

83 S.W. 539

109 Mo.App. 622

H. D. HENGSTENBERG et al., Respondents, v. W. F. HOYT et al., Appellants

Court of Appeals of Missouri, Kansas City

November 28, 1904

Appeal from Maries Circuit Court.--Hon. John W. McElhinney, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. S Pope for appellant.

(1) The evidence fails to disclose any contract between plaintiffs and defendant for the construction of the building into which it is claimed the material went, and the case must therefore be reversed on the following authorities: Hause v Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo 578; Barker v. Berry, 8 Mo.App. 446; Mill Co. v. Brundage, 25 Mo.App. 268; Davis v. Creamery, 63 Mo.App. 477; McDow v. Sturvant, 41 Mo.App. 220; Duross v. Broderick, 78 Mo.App. 260; Lumber Co. v. Steps, 157 Mo. 366; Richardson v. O'Connell, 88 Mo.App. 12.

John O. Holmes and Leslie B. Hutchinson for respondent.

(1) The authorities cited by the appellant in her brief in support of her first contention are not in point as a careful review of the same will show. (2) In the case at bar, the court sitting as a jury had a right to infer from the facts proven that there was a contract and the court will not disturb such finding. Bluedorn v. Railroad, 121 Mo. 270; Ham v. Barret, 28 Mo. 388; Ins. Co. v. Weid, 11 Wall. 440; 1 Greenleaf on Evidence, sec. 48; Burkholder v. Henderson, 78 Mo.App. 295. The lien account is not of itself a pleading. It may be considered as evidence in the case. McMurray v. Taylor, 30 Mo. 263.

OPINION

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. [R. S. 1899, sec. 4203; Duross v. Broderick, 78 Mo.App. 260, and case 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 contractor that in order to make out a prima facie case he must,...