Mississippi Woodworking Co. v. Maher
| Decision Date | 21 December 1954 |
| Docket Number | No. 28973,28973 |
| Citation | 273 S.W.2d 753 |
| Parties | MISSISSIPPI WOODWORKING COMPANY, a Corporation, Plaintiff, v. Frank J. MAHER, d/b/a All Contracting Company et al., Defendants, James M. Scannell, Jr., and Laverne C. Scannell, His Wife, Defendants, Respondents, Elmer O. Kelley, Defendant, Cross Claimant, Appellant. |
| Court | Missouri Court of Appeals |
Ben F. York, St. Louis, for appellant.
Stanley R. Schuchat and Floyd D. Stewart, St. Louis, for respondents.
This is an equitable action instituted for the purpose of adjudicating and enforcing the various mechanic's lien claims filed against property owned by defendants James M. Scannell, Jr., and wife (respondents). All of the claims were finally disposed of in the trial court except that of defendant, cross claimant, Elmer O. Kelley (appellant).
The allegations forming the basis of his claim for a lien are found in the amended cross claim filed by defendant Kelley against defendants Scannell. These defendants filed a motion to dismiss the said cross claim upon the ground that it did not state a claim upon which relief could be grantee against them. The motion to dismiss was sustained and defendant Kelley has duly perfected his appeal.
It appears from the allegations in the cross claim that defendants Scannell owned and occupied a dwelling located upon the land described in the pleadings. They contracted with defendant Frank J. Maher to erect a brick garage and breezeway to be attached to said dwelling. Maher entered into various subcontracts, one of which being with defendant Kelley who agreed to furnish all of the carpenter work on the garage and breezeway and materials for the roof for the sum of $520. On August 13, 1952, Mr. Kelley completed the work required under his contract and demanded payment from Mr. Maher but said defendant failed to pay any part of the amount agreed upon.
On the 8th day of October, 1952, defendant Kelley served written notice upon Mr. and Mrs. Scannell as required by Section 429.100 RSMo 1949, V.A.M.S., and on November 17, 1952, filed his verified lien account in the office of the circuit clerk of St. Louis County, which account was stated as follows, 'Elmer O. Kelley, contract with Frank J. Maher, d/b/a All Contracting Company for the furnishing of carpenter work on garage and breezeway and materials for the roof thereto for the sum of Five Hundred Twenty Dollars ($520.00).'
In the amended cross claim defendant Kelley specifies the items of work and materials furnished by him in his compliance with the contract he made with Maher. At the time he obtained leave to file the amended cross claim this defendant also asked leave of court to file an amended lien but his request was denied. Kelley obtained a judgment by default against defendant Maher for the full amount of his claim but, as already indicated, the circuit court ruled that he was not entitled to a lien upon the property in question.
A lien claimant is required by Section 429.080 RSMo 1949, V.A.M.S., 'to file with the clerk of the circuit court of the proper county a just and true account of the demand due him.' The sole question to be determined upon this appeal is whether defendant Kelley complied with the mandate of this statute. More specifically we must decide whether this claimant met the requirements of the statute when he stated the lump sum contract or was he required to specify the various items of work and materials furnished by him?
It is often said that the mechanic's lien statute, which gives to contractors, subcontractors, materialmen and laborers a rather extraordinary remedy, is just in principle and should be liberally construed. However, the fact that the remedy is extraordinary would certainly necessitate that a lien claimant substantially comply with the requirements of the statute in order to avail himself of the benefits thereof. Springfield Planing Mill, Lumber & Const. Co. v. Krebs, 196 Mo.App. 432, 193 S.W. 621.
The cases clearly indicate that where a lien claimant is an original contractor and has made a lump sum contract with the landowner, his lien account may be stated in a lump sum and need not be itemized in order to be considered sufficient. State ex rel. St. Francois County Building & Loan...
To continue reading
Request your trial
-
Trilogy Dev. Co. v. BB Syndication Servs., Inc. (In re Trilogy Dev. Co.)
...(Mo.Ct.App.1986); Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291 (Mo.Ct.App.1962); Mississippi Woodworking Co. v. Maher, 273 S.W.2d 753, 755–756 (Mo.Ct.App.1954). The purpose of the itemization requirement is to enable the owner to conduct an investigation to determine ......
-
Continental Casualty Co. v. Allsop Lumber Co.
...to materialmen's liens when there is no contractual relationship between the claimant and the owner. Mississippi Woodworking Co. v. Maher, 273 S.W.2d 753, 755 (Mo.App.1954); Davidson v. Fisher, supra, pp. 301-302 of 258 The record does indicate that Allsop had no actual knowledge that all t......
-
Mitchell Engineering Co., A Div. of Ceco Corp. v. Summit Realty Co., Inc., WD
...is to 'include in his lien account an itemized statement of the labor and materials furnished.' Mississippi Woodworking Company v. Maher, 273 S.W.2d 753, 756 (Mo.App.1954). The purpose of the lien statement has been often quoted from Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2......
-
United Pac. Ins. Co. v. Martin & Luther General Contractors, Inc., 3644
...of the labor and materials furnished. Kling v. Railway Construction Co., 7 Mo.App. 410.' (Emphasis supplied.) Mississippi Woodworking Company v. Maher, Mo.App., 273 S.W.2d 753, 755. '* * * generally * * * where the contract for construction of the building is for a sum in gross, the items o......