Hewitt v. Truitt

• Decision Date: 23 November 1886
• Parties: W. HEWITT ET AL., Appellants, v. J. E. TRUITT ET AL., Respondents.
• Court: Missouri Court of Appeals

23 Mo.App. 443

W. HEWITT ET AL., Appellants,

v.J. E. TRUITT ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 23, 1886.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

W. M. KINSEY, for the appellants.

W. F. SMITH and D. D. FASSETT, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This was an action brought before a justice of the peace by a sub-contractor to enforce a mechanic's lien. Judgment was rendered by the justice against the principal contractor for the amount of the plaintiff's demand, and against the property establishing the lien. The defendant, Klockzin, the present owner of the property, alone appealed to the circuit court. The circuit court refused to allow any evidence to be introduced under the petition, and, thereupon, the plaintiffs tendered an amended petition and requested leave to file the same, which leave the court refused, and they declining to plead further, judgment was rendered for the defendant.

According to the original petition, Nannie J. Brown was the owner of the real estate at the time when the principal contract for the building was made, and it was made between her and Truitt, as principal contractor. The defendant, Klockzin, was described as the present owner of the premises by a mesne conveyance from Nannie J. Brown. Another defendant, Simpson, who did not appeal from the justice, was described as having some interest therein. The vice of the original petition was, that instead of averring notice of the plaintiffs' claim of lien on Mrs. Brown, it averred that such notice was given to Klockzin and Simpson.

The amendment which the plaintiffs tendered in the circuit court alleges that the premises against which the lien is sought to be enforced, were conveyed to Nannie J. Brown, through whom the defendant, Klockzin, claims by a deed dated March 20, 1884. It then proceeds as follows: “Said Nannie J. Brown either became the absolute owner of said lot, or thereby acquired and held the same in trust for the use of the defendant, Joseph E. Truitt, who thereby became and was the real owner thereof, said plaintiffs do not know which, but aver their belief in the one or the other alternative. Plaintiffs further state that on or about the _____ day of April, 1884, said Nannie J. Brown either entered into a contract with said defendant, Truitt, to erect on said described lot a four room story and one-half brick dwelling house, or as the real and beneficial owner of said lot, said Truitt, at or about that time, begun the erection of said dwelling on said lot on his own account, said plaintiffs do not know which, but aver their belief in the one or the other alternative; that afterwards said defendant, Truitt, either as the original contractor with Nannie J. Brown, or as the beneficial owner of said lot, plaintiffs do not know which, but aver their belief in the one or the other alternative, entered into a contract with the plaintiffs to furnish the necessary materials therefor, and do the painting on said dwelling house, to be erected as aforesaid, upon said lot, and that, in accordance with the terms and conditions of their contract with said Truitt, plaintiffs have furnished materials and performed labor of the value of sixty-five dollars, in and about, and upon said described lot, owned as aforesaid, the particulars of which will more fully appear in the bill of items referred to above; that plaintiffs demanded of defendants payment thereof, which was by said defendants refused, and that said sum is now unpaid and due plaintiffs; that said account accrued and became due on the twentieth day of ...