Porter v. Tooke

• Decision Date: 31 March 1864
• Citation: 35 Mo. 107
• Parties: PORTER, WHITE & MCLAUGHLIN, Respondents, v. JAMES H. TOOKE AND FANNIE TOOKE, Appellants.
• Court: Missouri Supreme Court

35 Mo. 107

PORTER, WHITE & MCLAUGHLIN, Respondents,

v.JAMES H. TOOKE AND FANNIE TOOKE, Appellants.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Law Commissioner's Court.

Plaintiffs below brought suit against the appellants, defendants below, and in their petition alleged, that at the time of the accruing of their account, set forth or referred to in their petition, they were co-partners, doing business under the name and firm of White & McLaughlin; that the defendant, James H. Tooke, owed them one hundred and twenty-one dollars and thirty cents, for materials furnished and plastering a two-story brick building for said James H. Tooke, at his request; that an account thereof was filed marked “A.”; that plaintiffs were the original contractors for doing the plastering and furnishing the materials in said account mentioned; that said plastering was done on, and said materials were used in a two-story brick building erected by said James H. Tooke, on land described in the petition, located in St. Louis county, Missouri, which land the plaintiffs learned, after doing the work and furnishing the materials, the defendant Fannie Tooke was the supposed owner, wherefore she was made a party to the suit; that for the purpose of obtaining the benefit of ‘An act entitled an act for the better security of mechanics and others erecting buildings and furnishing materials for the same in the county of St. Louis,” approved February 14, 1857, plaintiffs, within six months after said indebtedness accrued, to-wit, on the 15th of December, 1860, filed with the clerk of the Land Court of St. Louis county a just and true account of the demand due them after all just credits had been given, and a true description of the property (or so near as to identify the same) as the land upon which the lien was intended to apply, with the name of the owner so far as known, verified by affidavit of Robert McLaughlin, one of the plaintiffs; that a certified copy of said lien was filed with the petition in the Law Commissioner's Court. Plaintiffs prayed judgment for one hundred and twenty-one dollars and thirty cents, with interest from August 5, 1860, and costs of suit, with a special judgment on said lien according to law.

Martin & Bell, for appellants.

I. The only connection between James H. Tooke and the premises described in the petition, is to be found in the following allegation: “That the materials were furnished and plastering done by them on a certain two-story building erected by James H. Tooke on” the premises aforesaid.

This is no allegation that James H. Tooke had any interest or estate in the premises. It is not alleged that he had even a tenancy at will, much less an estate that would justify him in encumbering the property with a lien; it...