Miller v. Hoffman

Decision Date17 May 1887
Citation26 Mo.App. 199
PartiesJOSEPH MILLER ET AL., Respondents, v. E. T. HOFFMAN ET AL.; HELEN M. KIMBALL, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

TAYLOR & POLLARD, for the appellant: The notice of lien claim must be in writing and properly signed. Schulenburg v Bascom, 38 Mo. 188. The service was not sufficient. Ryan v. Kelly, 9 Mo.App. 396. The service of notice personally, on the owner, ten days before filing the lien, is a jurisdictional fact not to be excused. It is indispensable to a valid sub-contractor's lien. Hewitt v Truitt, 23 Mo.App. 443. The lien is void, because it embraces two lots clearly marked out and defined on the recorded plat. Fitzgerald v. Thomas, 61 Mo. 500; Williams v. Porter, 51 Mo. 441; Wright v. Beasley, 69 Mo. 549; Mattack v. Lair, 32 Mo. 262. The court erred in holding that the plaintiffs could recover for all items furnished before Fathman's death, combined with items furnished after his death on the same account. This objection was made at the trial. Allen v. Mining & Smelting Co., 73 Mo. 688; Gibson v. Nagel, 15 Mo.App. 597. Putting these extras with the contract work, furnished and completed more than four months before filing the lien, is not sufficient to rescue the contract work from the four months' limitation. Schulenburg v. Vrooman, 7 Mo.App. 134.

JULIAN LAUGHLIN, for the respondents.

OPINION

ROMBAUER J.

This is an action, by a material man, against a contractor to recover a balance due for materials furnished, and against the owner to enforce a mechanic's lien against the premises hereinafter described. The contractor, although duly served, did not defend. There was a general judgment against the contractor in the trial court for $767.94, being the exact amount claimed; and, also, judgment subjecting lots 19 and 20, of a certain block, to the lien of the judgment. The latter part of the judgment was so modified, by voluntary remittitur, as to subject lot 19 only to the plaintiff's lien. From this judgment the defendant owner appeals.

The errors assigned are, that the lien is void under the conceded facts, and the judgment against the property is erroneous as a matter of law; that there is no evidence that the owner was served with notice of the plaintiff's claim of lien, ten days prior to the filing of the lien; that the court gave illegal instructions for the plaintiff, and refused proper and legal instructions asked by the defendants.

The plaintiff is the surviving partner of Fathman & Miller. The testimony tends to show that the firm entered into a contract with the defendant, Hoffman, who was a contractor with the owner, to furnish certain framed lumber, and other mill material, toward the erection of the defendant owner's house, and that such material entered into the construction of the building, and was reasonably worth the prices charged in the plaintiff's account. The contract price for the lumber was six hundred and seventy dollars, but the amount was swelled by a number of extras to $767.94. The account filed does not separate the items furnished under the special contract from those furnished upon order as extra work.

The petition states that Fathman died December 14, 1885, and this statement the record admits to be true, although the plaintiff states that he did not die until December 16. It is conceded that some of the items, included in the account, were delivered after Fathman's death, and consisted mostly of extras. As to the amount of these items the testimony is not very clear, owing to the fact that the items in the account are not separately dated, and that the omission is not supplied by testimony, and that there is some conflict between the allegations of the petition, which are admitted to be true, and the plaintiff's own testimony as to the date of Fathman's death.

The account is made out in the name of Miller & Fathman, and the lien was filed April 15, 1886, and more than four months after Fathman's death, if the date of his death is December 14, 1885, as stated in the petition. The property sought to be charged with the lien consists of lots 19 and 20, of block 7, and the testimony concedes that the block was platted and recorded long before the defendant owner's contract with Hoffman was entered into, and that the exact boundaries of such lots are shown on the recorded plat. The testimony, also, concedes that, while the two lots are in one inclosure, the structure, for which the materials were furnished, is situated exclusively on lot 19.

The facts, touching notice to the owner of the plaintiff's claim and intention to file a lien, were shown to be as follows: On April 2, 1886, a written notice of the claim was left at the owner's residence. This notice was in compliance with the statute as to form, and was signed thus: " Miller & Fathman, by Julian Laughlin, their attorney." Miller, at that time, as surviving partner, was administering the partnership estate of Fathman & Miller, and Julian Laughlin was acting as his attorney. No personal service of this notice was made on the owner on April 2, but, subsequently, and prior to April 6, she admitted that she had received it on the day when it was left at the house.

The defendant, upon trial, objected to the introduction of the notice in evidence, as well as to the introduction of the lien paper. The court overruled these objections, of which ruling the defendant complains as erroneous.

We think the notice was formally sufficient. The claimant's name was signed to it by authority, and it advised the defendant from whom it came, and who held the claim. In all these respects it is essentially different from the notice condemned in Schulenburg v. Bascom (38 Mo. 191). The only object of the notice is to secure the owner at least ten days' time to investigate the...

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7 cases
  • Banner Lumber Co. v. Robson
    • United States
    • Missouri Court of Appeals
    • 7 April 1914
    ... ... O'Malley. All the ... testimony in the case shows that P. O'Malley purchased ... the last two items on his own account. Miller v ... Hoffman, 26 Mo.App. 199; Livermore v. Wright, ... 33 Mo. 31; Gauss v. Hussman, 22 Mo.App. 119; ... Schulenburg v. Vrooman, 7 Mo.App. 133; ... ...
  • Costello v. Kansas City and Kansas City Railways Company
    • United States
    • Missouri Supreme Court
    • 13 March 1920
    ... ... Lemmons v. Robertson, 164 ... Mo.App. 85; Sperry v. Hurd, 151 Mo.App. 583; ... Harless v. Ry. Co., 123 Mo.App. 22; Miller v ... Engle, 185 Mo.App. 560. (b) Even if the facts stated in ... the affidavit were preserved by the bill of exceptions, it is ... evident that ... In such case it is ... always sufficient to show that the party to be served ... actually received the notice ... [ Miller v ... Hoffman, 26 Mo.App. 199, 202; Ryan v. Kelly, 9 ... Mo.App. 396; Brost v. Whitall-Tatum Co., 89 N.J.L ... 531, 99 A. 315.] For instance, the written ... ...
  • Powers And Boyd Cornice & Roofing Co. v. Muir
    • United States
    • Missouri Court of Appeals
    • 30 November 1909
    ...595; Hammond v. Darlington, 109 Mo.App. 333; Othenin v. Brown, 66 Mo.App. 318; Cahill & Co. v. Orphan School, 63 Mo.App. 31; Miller v. Hoffman, 26 Mo.App. 199; Holland v. McCarty, 24 Mo.App. 82; Scott v. Goldinghorst, 123 Ind. 216; White v. Stanton, 111 Ind. 540; Crawfordsville v. Boots, 76......
  • The State ex rel. Folk v. Spencer
    • United States
    • Missouri Supreme Court
    • 18 June 1901
    ...55; Mo.App. 274; Leach v. Cargill, 60 Mo. 316; Meyer v. Christian, 64 Mo.App. 203; Construction Co. v. Jones, 60 Mo.App. 1; Miller v. Hofman, 26 Mo.App. 199. W. Fisse, G. A. Finkelnburg and Clinton Rowell for respondent. (1) The four sections of the Act of 1899 appear as sections 7062 to 70......
  • Request a trial to view additional results
3 books & journal articles
  • Section 5.21 What Notice Must Contain
    • United States
    • The Missouri Bar Creditors' Remedies Deskbook Chapter 5 Mechanic's Liens
    • Invalid date
    ...Mo. App. 205 (W.D. 1885), and Schulenburg v. Bascom, 38 Mo. 188 (1866) (requiring the claimant's name and signature); Miller v. Hoffman, 26 Mo. App. 199, 202 (E.D. 1887) (upheld a notice signed "Miller & Fathman, by Julian Laughlin, their attorney") · The return of service— see §5.22, infra......
  • Section 21 What Notice Must Contain
    • United States
    • The Missouri Bar Mechanics Liens Guidebook Chapter 4 Procedure
    • Invalid date
    ...19 Mo. App. 205 (W.D. 1885); Schulenburg v. Bascom, 38 Mo. 188 (1866) (requiring the claimant’s name and signature); Miller v. Hoffman, 26 Mo. App. 199, 202 (E.D. 1887) (the court upheld a notice signed “Miller & Fathman, by Julian Laughlin, their attorney”) · The return of service—see §22,......
  • 14.24 What Notice Must Contain
    • United States
    • Real Estate Practice Deskbook Chapter 14 Mechanic's Liens
    • Invalid date
    ...19 Mo. App. 205 (W.D. 1885); Schulenburg v. Bascom, 38 Mo. 188 (1866) (requiring the claimant's name and signature); Miller v. Hoffman, 26 Mo. App. 199, 202 (E.D. 1887) (upheld a notice signed "Miller & Fathman, by Julian Laughlin, their attorney") · The return of service—see §14.25, infra ......

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