Miller v. Faulk

• Decision Date: 31 January 1871
• Parties: S. K. MILLER et al., Defendants in Error, v. M. D. FAULK et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

47 Mo. 262

S. K. MILLER et al., Defendants in Error,

v.M. D. FAULK et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

This was a suit commenced in the Cole Circuit Court by plaintiffs, upon a mechanic's lien filed against the Presbyterian church in the City of Jefferson. The title of the suit is, “S. K. Miller, M. L. Miller, and S. N. Sheldon v. The Presbyterian Church,” etc. Defendants answered, setting up amongst other things that the defendant, the Presbyterian Church, was a corporation, and must be sued as such. Plaintiffs moved to strike out that part of the answer, which was sustained, and the defendant excepted. Plaintiffs offered to read in evidence the notice and mechanic's lien, both of which were ruled out, and plaintiffs took a nonsuit, with leave to set aside, and the case came to the District Court by writ of error.

For statement see also opinion of the court.King Bros., and Ewing & Smith, for plaintiffs in error.

I. This action can not be maintained because plaintiffs sue as individuals and make no allegation of partnership, and the notice is signed by S. K. Miller & Co., and the mechanic's lien is signed in the same way.

II. The Presbyterian Church is a corporation, and can be sued only by its corporate name; and there must be an allegation in the petition that it is a corporation in this State. (Ang. & A. Corp., § 643, and authorities cited; Welton v. Pacific R.R., 34 Mo. 358.)

III. The Circuit Court did not err in excluding the mechanic's lien as evidence, because the lien is signed by S. K. Miller & Co., sworn to by S. K. Miller, and there is no statement in the lien that those seeking the benefit of the lien are partners; nor does it state who compose the firm of S. K. Miller & Co.

E. L. Edwards & Son, for defendants in error.

CURRIER, Judge, delivered the opinion of the court.

This suit is brought by S. K. Miller, M. S. Miller, and S. N. Sheldon, sub-contractors, against W. D. Faulk, principal contractor, and certain other parties as owners, to enforce a mechanic's lien.

1. At the trial the notice given by the plaintiffs to the owners was objected to and ruled out upon the ground that it was not signed by each of the plaintiffs. It was signed “S. K. Miller & Co.,” and the plaintiffs are not alleged to have been partners doing business under that name.

The statute (Gen. Stat. 1865, p. 768, § 19) does not in terms require the notice to be either in writing, or that it should be signed. It was decided, however, in Schulenberg v. Bascom, 38 Mo. 188, that the notice must be both in writing and signed. But it would, in my opinion, be carrying the doctrine of that decision quite too far to hold that the notice must not only be signed, but that it must be signed by each one of several joint contractors. Here there were three of these contractors, and the notice was signed by one of them, as for all, in the manner already stated. The notice, as thus authenticated, gave definite information of the character and amount of the claim, and was sufficient to put the owners on their guard in dealing with the principal contractor, and that is what the notice was designed to accomplish. The objection urged against it is technical and without merit.

2. The lien filed with the circuit clerk was signed in the same way, and was ruled out on the same ground. The lien...