Horstkotte v. Menier

• Court: Missouri Supreme Court
• Writing for the Court: ADAMS
• Citation: Horstkotte v. Menier, 50 Mo. 158 (Mo. 1872)
• Decision Date: 31 March 1872
• Parties: HERMAN H. HORSTKOTTE, Respondent, v. JAMES MENIER et al., Appellants.

50 Mo. 158

HERMAN H. HORSTKOTTE, Respondent,

v.JAMES MENIER et al., Appellants.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Peacock & Cornwell, for appellants, cited Wagn. Stat. 909-911, §§ 8-10, 20.Stewart & Weiting, for respondent, cited Walkenhorst v. Coste et al., 33 Mo. 401; Schaeffer v. Lohman, 34 Mo. 68; Miller v. Foulk et al., 47 Mo. 262.

ADAMS, Judge, delivered the opinion of the court.

This was a suit to enforce a mechanic's lien. Defendant Higgs was the owner of the property. One Hodge was the original contractor with Higgs for the erection of the building, and defendants Menier and R. H. Horstkotte were sub-contractors under Hodge for doing the brick-work on the building, and, as such, bought from plaintiff the brick used in erecting the house; and the plaintiff filed his lien for these materials, and this suit is brought upon this lien. The defendants, by their answers, denied indebtedness, etc.

After the close of the plaintiff's evidence the defendants asked the court to instruct the jury to the effect that the plaintiff could not recover because he had not made the original contractor a party; which instruction was refused, and defendants excepted.

Both parties gave evidence conducing to prove their respective cases. At the close of all the evidence the defendants again renewed their demand to have the case withdrawn from the jury because the original contractor had not been made a party. Several other instructions were passed upon by the court, but it is unnecessary to recite them, as the main point discussed here was the question whether the original contractor was a necessary party, and whether this judgment, which was in favor of the plaintiff, can stand because he was not made a co-defendant.

Section 20 of Wagner's Statutes, p. 911, seems to contemplate that the original contractor ought to be made a co-defendant in order that his own rights, as well as the rights of the owner of the property, may be fully protected. That section declares that in all cases where a lien is filed under the provisions of that act, by any person other than the contractor, it shall be the duty of the contractor to defend any action brought under the act at s own expense, and during the pendency of such action the owner may withhold from such contractor the amount of money for which such lien shall be filed; and in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due by him to the contractor the amount of such judgment and costs; and if he shall have settled with the contractor in full, shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally the party liable.

When an owner of property contracts with a responsible party to furnish all materials and erect for him a building, under this section, he has the right to look to such contractor for protection against all liens by material-men and sub-contractors....