Peck v. Bridwell

• Decision Date: 21 January 1879
• Citation: 6 Mo.App. 451
• Parties: CHARLES H. PECK ET AL., Respondents, v. RICHARD F. BRIDWELL ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 451

CHARLES H. PECK ET AL., Respondents,

v.RICHARD F. BRIDWELL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 21, 1879.

A petition in an action on a mechanic's lien, which fails to state, at least by necessary implication, that the improvement was erected under a contract with one having an interest or ownership in the land to be charged, does not state facts sufficient to constitute a cause of action, and is not aided by verdict or by the statute of jeofails.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

JOHN JOHNSON, for appellant Card: The petition was insufficient.-- Porter v. Tooke, 35 Mo. 107; Kuhleman v. Schuler, 35 Mo. 142; Fitzgerald v. Thomas, 61 Mo. 499.

D. D. DUNCAN, for respondents.

BAKEWELL, J., delivered the opinion of the court.

This is an action for the enforcement of a mechanic's lien. The petition alleges that at a date named the plaintiffs were copartners; that at the same date defendant Brid well, under a contract between himself and defendant Porter, began to erect six two-story buildings on a lot of land described, ““which tract is owned by” defendant Porter; that Bridwell erected the buildings under the contract; and that plaintiffs, at the request of, and under contract with, Bridwell, furnished for the erection of said buildings, between certain dates named, certain lumber, of which the particulars are set out; that the balance claimed remains due; that, within four months after said indebtedness accrued, plaintiffs filed in the clerk's office of the Circuit Court, verified by the affidavit of plaintiffs' agent, a just and true account of the amount due, with a description of the property “so owned by defendant Porter,” with the name of R. F. Bridwell as contractor and of said C. C. Porter as owner, for the purpose of securing a lien thereon under the statute; that ten days before the filing of the lien the plaintiffs served a notice upon Porter, the owner of the buildings, etc.

Bridwell made default. Defendant Porter denied that any materials were furnished under the contract alleged, and denied that any lien was filed. Nathan Card was by leave of court made a party defendant, and filed a separate answer, claiming to own the property described, and denying that plaintiffs furnished any materials under the alleged contract; and says that any materials furnished by plaintiffs were furnished on the credit of one Mason, and not on account of Bridwell and Porter, and denies that any lien was filed. The new matter in this answer was denied by a a reply, and the action was dismissed as to Porter. The cause was tried by the court, and there was a finding for plaintiffs against Bridwell, and a special judgment against the property described, as the property of Card. A motion for a new trial and a motion in arrest were overruled, and plaintiffs appeal.

One of the grounds of the motion in arrest is that the petition does not set forth facts to constitute a cause of action.

The act (Wag. Stats. 907, sect. 1) gives a lien to the mechanic who does work or...