Hoffman v. Walton

• Citation: 36 Mo. 613
• Parties: HOFFMAN et al., Appellants, v. WALTON & HYNES, Respondents.
• Decision Date: 31 October 1865
• Court: United States State Supreme Court of Missouri

36 Mo. 613

HOFFMAN et al., Appellants,

v.WALTON & HYNES, Respondents.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Land Court.

C. D. Drake, for appellants.

The plaintiffs having filed a lien for a greater sum than that due them after all just credits given, have thereby lost the right to enforce any lien against the defendants' property. (Thatcher v. Powell, 6 Wheaton, 119; McCay's Appeal, 37 Penn. Stat. 125; Edgar v. Salisbury, 17 Mo. 271.)A. Hamilton with Van Waggoner, for respondents.

I. The statute establishes a privity and liability between the sub-contractor and the owner of the property. (23 Mo. 111; White v. Miller, 6 Harris, 54, and 31 Vt. 221.)

II. The mere mistake in the amount, which was corrected on the trial, did not vitiate the whole claim. The law will be construed liberally in favor of the mechanic and material-man. According to the notion of the defendant Hynes, a mere error in the addition or in the computation of interest, or a mistake as to a disputed item of credit or payment--in fact, a verdict or lien filed in any case for less than the mount due, would defeat the entire demand. (10 Ohio, 158-9.)

WAGNER, Judge, delivered the opinion of the court.

There is but one question in this case which it is deemed necessary to notice, and that is, whether the failure on the part of the plaintiffs to give all the just credits to which the defendants were entitled when the demand was filed, worked a forfeiture of the lien. The account filed, for which a lien was asked, was for the sum of $1,771.14, and it was admitted that before the filing of the same the sum of $160 had been paid thereon, which had been neglected to be credited.

By an act entitled “An act for the better security of mechanics and others erecting buildings or furnishing materials for the same in the county of St. Louis,” approved February 14, 1857 (Sess. Acts, 1857, p. 668), it is provided as follows: “§ 3. And it shall be the duty of every original contractor, within six months, and every journeyman and day laborer, within thirty days, and of every other person seeking to obtain the benefit of this act, within four months after the indebtedness shall have accrued, to file with the clerk of the St. Louis Land Court a just and true account of the demand due him or them, after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property or so near as to identify the same upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall in all cases be verified by the oath of himself or some credible person for him.”

It will be seen that the account or statement of demand required to be filed in order to secure a lien, under the act, must contain three things: first, a just and true account, after all credits have been given; second, a true description of the property on which the lien is intended to apply; and third, the name of the owner or contractor, or both, if known to the person filing the lien, and it must also be verified by oath. We need not inquire why the Legislature required such a statement to be made and filed as a pre-requisite to a lien, though good and sufficient reasons for its propriety readily suggest themselves.

The lien, when filed in accordance with law, operates as an encumbrance. It may be of great and essential moment to the owner of the property to know the exact amount for which it is encumbered.

The mechanic or material-man who claims the lien may omit to give the proper credit, as well for a large as a small amount. The party owning the property may be desirous of selling. A purchaser might be found perfectly willing to buy with a certain amount existing against it as a lien, but not if it was encumbered greatly in excess over that amount. Protracted litigation may ensue on an attempt to prosecute the lien to final judgment, and the owner be deprived of the market value of his property for an indefinite period, on account of the failure to comply with the statute in giving the just credits. But the right of a mechanic or material-man to a lien on a building which his labor or materials have contributed to erect, nowhere exists at common law. It is purely of statutory creation. It is an extraordinary remedy, and he who seeks to avail himself of it must strictly comply with its conditions. The statute points out a certain mode and manner of proceeding, and if that mode and manner is not pursued, the remedy does not exist.

It is required that all just credits shall be given to the accounts; that the property shall be accurately described so that it can be identified in applying the lien, and that the name of the owner or contractor, or both, if known, shall be inserted. These all taken together, make up the constituent or component parts necessary to give validity to the lien. And we are no more authorized to say that any one of these constituents can be dispensed with or omitted than another.

In Ohio, it has been decided that the fact that the amount due was less than that contained in the statement filed did not defeat the lien. (Thomas v. Huesman, 10 Ohio, 152.) But this adjudication was made on a statute wholly different from ours. It required only “that any person entitled to a lien under this act shall made an account in writing of the items of labor, skill, material and machinery furnished, or either of them, as the case may be, and after making oath thereto within four months from the time of performing such labor and skill, or furnishing such material and machinery, shall file the same in the recorder's office,” &c. Nothing is said about giving credits, as in the law under consideration; besides, that was not an omission to give a credit, for it does not appear that any payment had been made, but a miscalculation in computing the amount of measurement in some carpenters' work. Being founded on a statute entirely different, and the facts of the two cases being wholly dissimilar, it cannot be regarded as authority here.

The judgment is reversed and...