Landers Lumber & Cement Co. v. Short

• Decision Date: 03 April 1931
• Citation: 37 S.W.2d 981,225 Mo.App. 416
• Parties: LANDERS LUMBER & CEMENT COMPANY, A CORPORATION, RESPONDENT, v. GRANT O. SHORT, ETTA SHORT, ARTHUR HART, L. O'BYRNE AND H. PROSERPI, APPELLANTS
• Court: Missouri Court of Appeals

37 S.W.2d 981

225 Mo.App. 416

LANDERS LUMBER & CEMENT COMPANY, A CORPORATION, RESPONDENT, v. GRANT O. SHORT, ETTA SHORT, ARTHUR HART, L. O'BYRNE AND H. PROSERPI, APPELLANTS

Court of Appeals of Missouri, Springfield

April 3, 1931

Appeal from Greene County Circuit Court.--Hon. Warren L. White Judge.

Reversed and remanded.

F. W Barret for appellants, Grant O. Short and Etta Short.

(1) Where a petition to enforce a materialman's lien, charges a joint contract, recovery must be on that theory or none at all, although the evidence may disclose a right to recover upon some other cause of action not pleaded. Coen v Bettman, 166 Mo.App. 671. (2) A judgment, in a materialman's suit to enforce a lien, cannot go beyond the scope of the petition. Wenzlick v. Funck Lumber Co., 224 S.W. 60; W. F. Coen v. Bettman, 166 Mo.App. 671. (3) An estate by the entirety cannot be subjected to a materialman's lien, unless both the husband and the wife were bound by a contract to pay, or unless when one contracts he or she is acting as the agent of the other. Goldberg Plumbing Supply Co. v. Taylor et ux., 237 S.W. 900; Kurtz v. Field et al., 14 S.W.2d 9; De Ranks v. Lee, 200 S.W. 79; H. B. McCray Lumber Co. v. Standard Const. Co., 285 S.W. 104. Agency cannot be inferred from fact that wife knew that her husband was about to procure the performance of the work, Planing Mill v. Brundage, 25 Mo.App. 268; or that the wife knew that he was about to enter into the contract, Garnett v. Berry, 3 Mo.App. 197; or that wife knew of contract by husband and that material was furnished thereunder and gave directions as to minor changes, Hughes v. Anslyn, 7 Mo.App. 400; or that wife gave directions, Planing Mill v. Brundage, 25 Mo.App. 268; Barker v. Berry, 8 Mo.App. 446; Kuenzel v. Stevens, 71 Mo.App. 286. (4) There is no evidence in the case, that a lien claim was ever filed with the circuit clerk. Such action is the foundation for a suit to establish a lien. Section 7221, R. S. 1919; Boland v. Webster, 126 Mo.App. 591.

Hamlin, Hamlin & Hamlin for appellant, H. Proserpi.

Wear & Benton for respondent.

(1) To warrant establishment of a mechanic's lien against real estate of wife for building erected thereon under contract, with the husband, it is essential to show such an arrangement or agreement between husband and wife, or facts and circumstances from which such an arrangement or agreement may be inferred, so as to constitute the husband the "agent" of the wife, and such agency for the wife may be inferred though the husband contracted with the builder in his own name. Henry Evers Mfg. Co. v. Grant, 284 S.W. 525. If agency of husband to bind wife's separate property may be inferred from facts and circumstances, so his agency to bind her interest in property held by the entirety may be inferred. (2) The agent mentioned in the statute may be a person with such limited authority as to be unable to bind his principal personally for the work, but who at the same time, by the exercise of the limited authority, given will transmit to the person furnishing the materials a right to a lien upon the owner's premises. Ward v. Nolde, 259 Mo. 285.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Action in equity under the statute to enforce a mechanics lien and to determine and to adjudge priority of liens. The trial court found for plaintiff and entered judgments to enforce its lien. It also found for plaintiff against defendant Hart, who was the contractor and rendered personal judgment against him. It found against the claims of defendants O'Byrne and Proserpi on their claims for liens. Defendants Short and Proserpi appealed.

The judgment in this case will have to be reversed and the cause remanded for new trial because of what is likely an oversight in the trial of the case or a mistake in preparing the abstract of record for use in this court. The foundation of a mechanics lien is the lien statement filed with the clerk of the circuit court of the county where the property is located. Unless this...