Lepage v. Laux

• Decision Date: 07 April 1919
• Docket Number: No. 13207.,13207.
• Citation: 211 S.W. 898
• Parties: LEPAGE v. LAUX et al.
• Court: Missouri Court of Appeals

211 S.W. 898

LEPAGE v. LAUX et al.

No. 13207.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

Action by Constant Lepage against Ed. J. Laux and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Pope & Lohman, of Jefferson City, for appellants.

Irwin & Haley, of Jefferson City, for respondent.

ELLISON, P. J.

This action was instituted to enforce a mechanic's lien against a certain bank building in Jefferson City. It is alleged in the petition that Laux Bros. composed a partnership engaged in contracting for the erection and remodeling of buildings; that the bank building and lots upon which it was situated were owned by the Schott estate, and that Emil Schott, Clara Koch, W. J. Schott, John G. Schott (deceased), and J. W. Schott were the heirs; that Emil Schott was trustee for Clara Koch, agent for W. J. Schott and executor of the estate of John G. Schott. It was alleged that these owners entered into a certain contract with Laux Bros. for remodeling the bank building, including the plastering; that Laux Bros. as original contractors sublet the plastering to this plaintiff for $632, and that he furnished the material and did the work, but has not been paid. The judgment in the circuit court was for plaintiff.

The evidence did not support the petition. It showed that there were three contracts; one a general contract in writing for all the work save the plastering, another was a verbal contract with the owners for the plastering, except the plastering in a large vault, and the other a verbal contract with the bank for plastering such vault. The written contract was for a certain price. The verbal contracts for plastering were separate and for different prices, the vault, to be paid for by the bank, was $120, and the other, to be paid for by the owners, was $528.

There was not only a failure to prove the contracts alleged, but there was affirmative proof of an entirely different state of facts. There was no amendment to the petition conforming it to the facts shown. For the reason foregoing it is manifest that the judgment cannot stand.

In order to fix a mechanic's lien on another man's property, it must be shown that the owner, or his agent, contracted with the lienor, or that he contracted with some one who subcontracted with the lienor. Hengstenberg v. Hoyt, 109 Mo. App. 622, 83 S. W. 539; Lumber Co. v. Myers, 87 Mo. App. 671; Richardson v. O'Connell, 88 Mo. App. 12. In this case, conceding that it was shown that Emil Schott and other heirs were owners of the bank building, and that Emil Schott was...