Speilman v. Shook

• Decision Date: 31 March 1848
• Citation: 11 Mo. 340
• Parties: SPEILMAN v. SHOOK, RENON & PAPIN.
• Court: Missouri Supreme Court

11 Mo. 340

SPEILMAN

v.SHOOK, RENON & PAPIN.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

FIELD & CARROLL, for Appellant.

I. The court below erred in deciding that the act of 1841, requiring previous notice by a sub-contractor, was in force in St. Louis county after the passage of the act of 1843. The act of 1841, gave a lien to sub-contractors only in case previous notice was given to the owner or proprietor. Acts 1841, p. 105. The act of 1843 provides a new system for St. Louis county; omitting the provisions as to previous notice, and substituting a subsequent notice in writing. Acts 1843, p. 83. The 14th section of the last mentioned act repeals all acts and parts of acts contrary to, or inconsistent with it. It seems superfluous to enter into an argument to show that when a lien is given by one act in a particular case, under limitations and restrictions, and then by a later act the lien is given in the same case without such limitations or restrictions, there is a direct repugnancy between the two acts, and the former must yield to the latter. The Revised Statutes of 1845, have not repealed the act of 1843, and it is still in force in St. Louis county. Stat. 1845, title Laws, § 22.

II. The mistake in the description of the property, was properly regarded by the court below as unimportant. The act of 1843 requires “a true description of the property, or so near as to identify the same.” From the facts agreed, it would appear that no person could have been misled as to the identity of the property. Besides, in the present case, the question comes only to be decided against the owner, who was a witness of the plaintiff's work in its progress, and must have known where the lien was intended to apply.

RANNELS, for Appellees.

1st. The misdescription set forth in the fourth clause of the “case agreed,” is fatal to the plaintiff's claim. In a city, the streets are certain, and the only certain landmarks to property; and a misdescription in this respect in the city, is as great and as fatal when a true description is required, as if in the country, a description in regard to land, locates it in the wrong township or section. A sheriff's deed to No. 16 Main street, would not pass title to No. 16 Second street. 2nd. The law of 1843 (under the provisions of which alone the plaintiff seeks to recover), is unconstitutional and void; taken by itself it subjects the property of one man to another's debts, and compels him to pay debts he has never contracted. 3rd. The court did not err in overruling the instructions asked for by plaintiff in regard to the notice required by the law of 1841, to be given by the subcontractor, of his intention to furnish materials or perform labor; that notice should have been given; and the law of 1843 does not repeal the law of 1841 in this respect; it is not contrary to, or inconsistent with the provisions of the act of 1843. The two acts in regard to the notices required to be given, are entirely consistent, and both notices should be given; and by connecting the two acts together in this respect, can gross injustice and hardship be prevented. The law of 1841 requires notice of the intention to do the work; the law of 1843 gives notice, and fixes the amount of the indebtedness; and § 3rd of ch. 117, Rev. Code, shows the sense of the Legislature on this subject, and blends the two together in substance.

MCBRIDE, J.

This was a scire facias brought to enforce a mechanic's lien, by Speilman, a sub-contractor, against the contractors and owners, for painting a house. The trial was had before the court on an agreed statement of facts; they are as follows: Papin was the owner of ground in St. Louis, and made a special written contract with Shook & Renon to erect a house on the ground, in the spring of 1845. Speilman was employed by Shook & Renon to paint the house, and the work was in fact done by him with the knowledge of Papin, who was often present while the work was going on. In August, 1845, Speilman filed a lien for this work at prices which were admitted to be reasonable. It was admitted that the lien filed was regular, except in the description of the property, which was as follows: “A building situate on the south side of Pine street, between 13th and 14th streets, in block No. 501, in the City of St. Louis and State of Missouri, being the western tenement of a double brick house, two stories high, with an attic, the gable end of which double building fronts on Pine street.” In fact, the house was situated between 12th and 13th streets, and not between 13th and 14th streets; but the description otherwise was correct and there was no similar house in that neighborhood, between 10th & 14th Pine and Chesnut streets. A notice was duly given to Papin by Speilman, under the provisions of the act of 1843, to which no exceptions were taken.

The plaintiff then...