Mill v. Presbyterian Church

• Decision Date: 31 January 1874
• Citation: 54 Mo. 520
• Parties: MISSISSIPPI PLANING MILL, Defendant in Error v. PRESBYTERIAN CHURCH, Plaintiff in Error.
• Court: Missouri Supreme Court

54 Mo. 520

MISSISSIPPI PLANING MILL, Defendant in Error

v.PRESBYTERIAN CHURCH, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cole Circuit Court.

Ewing & Smith, for Plaintiff in Error.

I. The lien paper, which had been filed in the name of “Mississippi Planing Mill Company,” which was not the name of the plaintiff, was inadmissible. (32 Mo., 218.)

II. The mechanic's lien law, being in derogation of common law, must be strictly complied with. (28 Mo., 188; 15 Mo., 281; 1 E. D. Smith, 654.) The evidence cannot be supplied by parol testimony. (38 Mo., 188.)

III. There is no evidence that the church ever authorized the contract or ratified it afterwards. Corporations must speak by their records, if any kept, and there were in this case. (30 Mo., 118.)

Lay & Belch, for Defendant in Error.

I. The object of the notice and the lien is to give definite information of the character and amount of the claim, and, if they do this, they are sufficient. (Miller vs. Faulk, 47 Mo., 262.)

II. When the name given sufficiently designates the corporation, a contract cannot be avoided for a misnomer. (Ang. & Am. Corp., § 647; St. Louis Hosp. Ass. vs. Williams' Admr., 19 Mo., 609.)

III. Acts of corporations may be proved in the same manner as those of individuals, and no action in writing on the part of the Board of Directors is necessary. (South. Hotel Co. vs. Newman, 30 Mo., 118; Preston vs. Mo. & Pa. Lead Co., 51 Mo., 43.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover for materials sold to defendant Faulk, to be used by him in the erection of a house in the petition named, erected by him for the other defendants, and to enforce a mechanic's lien against said house, &c.

The petition stated, that the plaintiff was a corporation incorporated under the laws of this State; that the defendant, Mr. D. Faulk, prior to the 24th day of September, 1867, entered into a contract with the defendants, Austin A. King, Jr., O. G. Burch, E. W. Parsons, N. C. Burch, and D. G. Steele, who were the trustees of the Presbyterian Church of Jefferson City, Missouri, and the owners of the premises described, for the erection of a church building upon the lot of ground therein described; that defendant Faulk was the original contractor with the said owners for the building and furnishing the materials for the erection of said church, &c. The petition then sets out, that the plaintiff had sold said Faulk material to be used, and which was used, in the erection of the buiding, describing the building and the premises on which it was erected; that Faulk had failed to pay for said materials, that notice thereof had been given to the defendants, the trustees for the church and owners of the house, of the intention of plaintiff to enforce a lien on said house for its said demands; that the account had been duly filed with the clerk, with a description of the building and premises as the law directs, & c., &c. In fact there is no objection taken to the petition, or to the time of giving the required notice to the owners of the building, or to the time of filing the lien, or of the commencement of the suit to enforce the lien, provided the different steps to be taken by the plaintiff were otherwise legally sufficient. The defendant Faulk made default, thereby confessing the action so far as he was concerned. The other defendants filed an answer, in which, after denying all of the material allegations in the petition, they aver, that they are only trustees of the Presbyterian Church of Jefferson City Missouri, which was organized in said city in February, 1866, which said church is a corporation by that name duly incorporated under the laws of this State, and that as such corporation it held the legal and equitable title and interest in the lot and building described in the petition, and that said defendants were only the trustees of said church and corporation, and have no title or interest in the said premises as such trustees. The defendants further aver, that said church, so incorporated as aforesaid, has an equitable interest in said lot and premises as described in plaintiff's petition, and which is sought to be charged with said lien, and that the plaintiff had knowledge of said equitable interest at the date of its alleged contract with said Faulk and of the filing of its supposed lien, and that said church and corporation is not made a party defendant to this action; wherefore it is averred, that said church or corporation cannot be made liable under a judgment obtained in this form, and that these are not proper parties defendants to the record, and that said suit should be dismissed, &c.

The plaintiff filed a replication to this answer, admitting that defendants were the trustees of said church, but denying all other affirmative allegations in the answer.

The case was tried before a jury. After the evidence was heard, and instructions given by the court, the jury found a verdict in favor of the plaintiff. The defendants filed a motion to set aside the verdict and grant them a new trial, setting out as causes therefor all of the causes usually set forth in such motions, sufficient to cover all of the points raised by the defendants in this case. This motion being overruled by the court, the defendants excepted. The defendants then filed a motion in arrest of judgment, which being also overruled by the court, they again excepted, and have brought the case to this court by writ of error.

The main, and it may be said, the only questions, arising in ...