Pullis v. Hoffman

• Court: Missouri Court of Appeals
• Writing for the Court: THOMPSON, J.
• Citation: Pullis v. Hoffman, 28 Mo.App. 666 (Mo. App. 1888)
• Decision Date: 31 January 1888
• Parties: AUGUSTUS PULLIS et al., Respondents, v. E. T. HOFFMAN et al., Appellants.

28 Mo.App. 666

AUGUSTUS PULLIS et al., Respondents, v. E. T. HOFFMAN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Affirmed.

JULIAN LAUGHLIN, for the appellants: Any material furnished by plaintiffs, and by them laid in Locust street, is not the subject-matter of a lien, and any material so furnished, or work and labor done in placing the same in Locust street would not be the subject-matter of a lien within the meaning of the mechanics' lien act. As early as 1852, in the case of Edgar v. Salisbury, the Supreme Court of this state decided that the mechanics' lien act gave no lien to an agent employed to disburse money and pay off hands in the building of a house, and held in that case, that if the party seeking the benefit of the act mingled in his account a charge for such work with other charges for which he might be entitled to a lien, and the whole summed up in one item, so that it was impossible to ascertain, from the account filed how much of the gross charge he could properly have a lien for, he thereby deprived himself of the benefit of the act, and his lien failed. Blakey v. Blakey, 27 Mo. 39; Kershaw v. Fitzpatrick, 3 Mo.App. 575; Reader v. Bensberg, 4 Mo. 445; Nelson v. Withrow, 14 Mo.App. 270; Murphy v. Murphy, 22 Mo.App. 18. A lien claim must be substantially correct, and sufficiently definite; a claim filed for an amount greatly in excess of the amount due is not in compliance with the statute. Kling v. Construction Co., 4 Mo.App. 410. The statement of lien required to be filed in the office of the circuit court clerk must contain a true account, which furnished its own explanation without reference to other papers or contract. Foster v. Wulfing, 20 Mo.App. 85; Henry v. Rice, 18 Mo.App. 497.

COLLINS & JAMISON, for the respondents: A lien is not lost or vitiated merely because, through inadvertence, or mistake, and without any fraudulent purpose, the claimant includes in his account items for which he is not entitled to a lien. Allen v. Mining Co., 73 Mo. 688. All the work and labor done on a building, and all the material furnished by the same person, constitute a demand, and the account accrues when the last item is furnished. The extras are not a separate demand. The illuminated tiling used as a covering for the cellar, extending outside of the building line, formed a part of the building, and constituted the subject-matter of a mechanic's lien. Kershaw v. Fitzpatrick, 3 Mo.App. 275. The city permits the use of the sidewalk to the extent and for the purpose taken advantage of by this owner, and McManus, therefore, had an interest in the sidewalk so used and occupied, and she will not be permitted to deny title. Fleitz v. Vickery, 3 Mo.App. 592. The owner of land joining in a public highway, street, or alley, owns the fee to the centre thereof, subject to an easement in the public. Bridge Co. v. Schawbacker, 57 Mo. 582; Kellogg v. Malin, 50 Mo. 496. The judgment in a mechanic's lien suit attaches to, and a sale under such judgment passes only such interest as the owner of the house has in the realty, but the lien extends to whatever interest such owner has, whether equitable or legal. Fleitz v. Vickery, 3 Mo.App. 592; Cole v. Barron, 8 Mo.App. 509; O'Brien v. Hanson, 9 Mo.App. 545. The plea that defendant, McManus, " has in good faith paid the contract price of said building to those who have furnished labor and material in the erection of the same," constitutes no defence to plaintiffs' cause of action. The case of Henry v. Rice (18 Mo.App. 497), decided by the Kansas City Court of Appeals, is not the law of the state of Missouri. Knaube v. Kerchner, 31 Ind. 217.

OPINION

THOMPSON J.

This is an action by a firm of subcontractors against the principal contractor, for the erection of a building, and also against the owner of the building and premises, to recover a balance due for work and labor done, and materials furnished, in the erection of the building under a contract with the principal contractor, and also to enforce a lien for such balance upon the building, and the land on which it is situated. The principal contractor, Hoffman, answered with a general denial; the owner of the building and premises, McManus, filed a separate answer, portions of which were stricken out; so that, upon the issue raised by a reply to the remainder, the questions were raised which we are called upon to consider. The case was referred, by consent, to a referee, to try all the issues of law and fact. The referee tried the issues, and filed a report, which was accompanied by the evidence submitted to him at the trial. In this report he recommended a judgment against the defendant, Hoffman, the principal contractor, in the sum of $2,035.40, and that the same be adjudged a lien upon the interest of the defendant, McManus, in the building and grounds described in the petition. Exceptions were filed to the report, which were overruled, and judgment was thereupon entered in conformity with the report, from which judgment the defendant, McManus, prosecutes this appeal. There can, of course, be no contest on this appeal, as to the propriety of the judgment against Hoffman; nor can there be any question that, if the plaintiffs are entitled to a lien at all, they are entitled to a lien for the full amount of this judgment, unless their lien is to be cut down for reasons which will be hereafter considered.

I. One of the grounds upon which the validity of the plaintiffs' lien is assailed is, that it was not shown that the last item of work done by them under their contract with Hoffman was done within four months before their claim of lien was filed. It is a sufficient answer to this that there was substantial evidence, including an admission of the appellants' counsel, in support of the conclusion of the referee that the last item of the work was done within four months of the filing of the claim of lien.

II. The next objection is, that the account filed with the claim of lien mingles together items for which the law gives a lien with items for which the law gives no lien. The item which constitutes the principal specification under this objection is an item of ninety-six dollars for illuminating tiling. Touching this item the referee found, under the evidence that the illuminating tiling went into the front of the building, in the vestibule of the door, in the rear of the front sill, and also extended from the south line of the building about four feet into the sidewalk. There was also evidence tending to show that the portion of the illuminating tiling which was extended into the sidewalk was so extended under a license from the city, embodied in one of its ordinances, and that it furnished a covering for that part of the cellar of the building, which, under such license from the city, extended southwardly under the sidewalk beyond the line of the building. He held, as a conclusion of law, that this item was one for which the law gives a lien. We are of the same opinion. The evidence showed that this illuminating tiling is very thick transparent glass, which is placed over areas under sidewalks for the purpose of lighting such areas. In this case the tiling was obviously so placed as to be merely a window to the cellar, which extended out under the sidewalk. In reaching this conclusion the referee distinguished the decision of this court in Kershaw v. Fitzpatrick, not reported in full, but digested, in 3 Mo.App. 575. It was there held that a mechanic's lien does not attach for the laying of a lead pipe two hundred and fifty feet in length under a...