Patrick v. Abeles

• Decision Date: 31 March 1858
• Citation: 27 Mo. 184
• Parties: PATRICK et al., Respondents, v. ABELES, Appellant.
• Court: Missouri Supreme Court

27 Mo. 184

PATRICK et al., Respondents,

v.ABELES, Appellant.

Supreme Court of Missouri.

March Term, 1858.

1. Although, in a suit instituted to enforce a mechanic's lien, the plaintiff may fail to show the existence of a lien in his favor, he will be entitled, if the pleadings and the evidence will warrant, to a general judgment.

2. The nature of an action is to be determined by the petition and not by the facts as they appear in evidence.

Appeal from St. Louis Land Court.

Plaintiffs in their petition (filed September 19, 1855,) alleged an indebtedness on the part of defendant for lumber furnished to defendant for the construction of a certain building in the city of St. Louis. The plaintiffs prayed judgment for the amount of the alleged indebtedness, and also that execution might issue against the building, against which it was alleged plaintiffs had filed a lien demand. The suit was commenced in the Circuit Court. It was removed by consent of parties to the St. Louis Land Court. It appeared in evidence that the building in question had been constructed for defendant by one John G. Lare; that the lumber had been furnished immediately to Lare. There was evidence tending to show that it was so furnished on the credit of defendant, Abeles. The account accompanying the petition was made out against John G. Lare. Plaintiffs also introduced in evidence the lien papers filed by them against the building. It did not appear that the required thirty days' notice of the claim of lien had been given to Abeles. At the close of plaintiffs' case, the court refused to instruct the jury that plaintiffs could not recover. At the close of the whole case the court, at the instance of plaintiffs, gave the following instruction: “1. If the jury believe from the evidence that the lumber sued for was furnished on the credit of Abeles and not on that of Lare, and was used in the construction of defendant's house, the defendant is liable to pay for it.” The following instructions were given at the instance of defendant: “2. If the jury believe from the evidence that the lumber and materials sued for in this suit were sold by plaintiffs to John G. Lare on his own responsibility and charged to him alone, they will find for the defendant. 3. If the jury believe from the evidence that the lumber, etc., sued for in this suit was purchased by John G. Lare for himself, and upon his responsibility and not the defendant's, then they will find for the defendant.”

The jury found for plaintiffs, and a general judgment was rendered in their behalf.

Cline & Jamison, for appellant.

I. The court erred in refusing the instruction asked by defendant at the close of plaintiffs' case. The lien filed was against John G. Lare, the contractor. The plaintiffs were sub-contractors. They failed to give the required thirty days' notice. There was no evidence showing a tendency to show that any such notice was given. If credit was originally given to the defendant, the lien demand should have been made out against Abeles as well as Lare. The lien read in evidence was insufficient to support the plaintiffs' petition.

II. If the lumber sued for was furnished and delivered upon the credit of the defendant, and the plaintiffs endeavored to recover the same from the defendant irrespective of the lien as filed, then the St. Louis Land Court did not have jurisdiction over the same. Consent cannot give jurisdiction. (20 Mo. 350.)

H. N. Hart, for respondents.

SCOTT, Judge, delivered the opinion of the court.

The nature of this action must be determined by...