Henry v. Mahone
| Decision Date | 28 June 1886 |
| Citation | 23 Mo.App. 83 |
| Parties | ROBERT L. HENRY ET AL., Appellants, v. W. T. MAHONE ET AL, Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.
Affirmed.
Statement of case by the court.
On and prior to January 1, 1882, the plaintiffs and one Samuel B Barker, were partners, doing business under the firm name of Henry, Barker & Coatsworth. On January 1, 1882, Barker retired from the firm, and assigned all his interest in the account sued on to the plaintiffs, who continued the business of the firm under the firm name of Henry Brothers & Coatsworth.
Prior to Barker's retirement, the firm of Henry, Barker & Coatsworth, had contracted with the defendant, W. T. Mahone to furnish materials for the house mentioned in the petition and had delivered to Mahone, under the contract, materials to the value of $261.15. Afterwards, on January 2, and February 7, 1882, the plaintiffs furnished materials, under the contract aforesaid, to Mahone to the value of $35.41. At the time the materials were furnished, Mahone had possession of the lot in Kansas City, on which the house was being constructed, under a bond for a deed made by one P. S. Brown. Mahone failed to comply with the condition of said bond and after the house was completed, surrendered possession of the lot to Brown and cancelled the said bond. Afterwards, Brown conveyed the lot by warranty deed to J. N. Biddle.
On March 23, 1882, the plaintiffs filed their mechanic's lien in the office of the circuit clerk. The lien was a single one, including both the materials furnished by Henry Barker & Coatsworth, as well as those furnished by the plaintiffs, with nothing to show that the accounts were separate, and with no assignment set forth. The aggregate amount stated to be due was $296.50, which was the sum of the two accounts. The affidavit of Jay Coatsworth to the lien states that " Robert L. Henry, George W. Henry, and Jay Coatsworth are partners as Henry Brothers & Coatsworth, and that the account annexed is a just and true account of the demand due said firm of Henry Brothers and Coatsworth from W T. Mahone, for lumber and building materials furnished by the said firm at the request of, and under and by virtue of a contract with, the said W. T. Mahone," etc.
P. S. Brown and J. N. Biddle were parties defendant with W. T. Mahone. The court tried the case without the intervention of a jury.
The court refused all the declarations of law asked by all the parties and made the following finding:
" The court finds the defendant, W. T. Mahone, indebted to plaintiff in the sum of $309.88 upon the account sued on; that plaintiffs have a mechanic's lien against the property in the petition described, as to $37.88 of the said indebtedness of said defendant, W. T. Mahone, but are not entitled to prosecute their said lien for a greater amount; " and the court rendered judgment accordingly.
The plaintiffs have appealed from said judgment.
W. J. STRONG, J. K. CRAVENS, for the appellants.
I. Prior to the filing of the lien one of the original firm retired and assigned his interest to his co-partners, the plaintiffs. Plaintiffs were substituted to all the rights of the original firm, and were entitled to enforce the lien for the whole demand, as the successors of the original contract.
II. The lien is only an incident to the debt, and an assignment of the debt carries with it the right to a lien; filing the lien is only one step towards enforcing the right, and while the claimant cannot enforce his lien against the property until he has complied with the provisions of the statute, still his right to the lien exists from the time that his work and materials go into the building. Douglas v. Zinc Co., 56 Mo. 388. No greater right exists after filing the account than existed before, as it is the furnishing of labor and materials that gives the lien, and not the filing of the account.
III. The assignee of an account might file the lien and enforce it. Goff v. Papin, 34 Mo. 177; Jones v. Hurst, 67 Mo. 568. " The lien adheres to the debt, no matter how such debt may be evidenced." Ib.
IV. The statute must be construed literally so as to advance the remedy, and not merely in the strictness of the letter. Putnam v. Ross, 46 Mo. 337; Oster v. Rabenan, 46 Mo. 595; De Witt v. Smith, 63 Mo. 263.
V. Previous to a judgment no lien, in fact, exists, hence the assignment of the right, after filing the account, could convey no more than would be conveyed by assigning the the account before filing. Allen v. Mining and Smelting Co., 73 Mo. 688.
LATHROP & SMITH, for the...
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