Squires v. Fithian's Adm'r

• Decision Date: 31 March 1858
• Citation: 27 Mo. 134
• Parties: SQUIRES, Plaintiff in Error, v. FITHIAN'S ADMINISTRATOR et al., Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 134

SQUIRES, Plaintiff in Error,

v.FITHIAN'S ADMINISTRATOR et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. The local mechanics' lien act of St. Louis county, of February 24, 1843, (Sess. Acts, 1843, p. 83,) did not confer a lien where the person for whom the building is erected has no interest in the premises, but is a mere tenant at will.

2. The thirty days' notice referred to in said act is required only of subcontractors.

3. Where the contract for the building of a house is really incomplete, the work being prosecuted from time to time as materials may be provided, or as the progress of other work may require, the mechanic is not required to file his lien within six months of the completion of each detached piece of work, but within six months of the completion of the whole work.

Error to St. Louis Land Court.

This was an action commenced by scire facias to enforce a mechanic's lien upon a house and lot. The writ set forth that work was done by plaintiff, and materials furnished by him under a contract with Samuel B. Fithian, the owner of the building; that Euphrosine Leitensdorfer and Josephine Colburn were owners of the lot; that the lien was filed February 3, 1855, within six months after the account accrued; that notice was given to said owners of the lot January 25, 1855, etc. The writ issued February 13, 1855.

The writ was served on Madame Leitensdorfer and Josephine Colburn. The latter answered, disclaiming all interest in the lot. Fithian dying, his administrator was made a party to the suit. Madame Leitensdorfer answered, alleging that she knew nothing of the state of accounts between plaintiff and Fithian; that plaintiff was neither contractor nor sub-contractor for her; that the building, so far forth as the plaintiff had done any work or furnished any materials therefor, was completed more than twelve months before the filing of any papers for a lien, or the giving of any notice; that no account was filed by plaintiff, Squires, nor any demand made for a lien, until after six months from the accrual of such demand against Fithian; that no demand ever accrued in favor of Squires against her; that Fithian, for ten months next preceding the institution of this suit, or any proceeding in this cause, had no interest in the building or the land on which it stands; that Fithian never was any thing more than a tenant at will under defendant; that said tenancy had been determined more than twelve months before the putting in of the answer, and upwards of six months before the filing of any paper or the commencement of any proceedings in this cause.

The plaintiff introduced evidence showing, and tending to show, that the plaintiff, Squires, did the carpentry work of a brick house under a contract with Fithian, the son-in-law of Madame Leitensdorfer; that some work was done by plaintiff as late as October, 1854. Plaintiff also introduced evidence with a view to show that Madame Leitensdorfer sanctioned the work done by him, and that Fithian was her contractor, and plaintiff, Squires, a sub-contractor.

Plaintiff asked the following instructions, which the court refused to give: “1. If the jury believe from the evidence that S. B. Fithian was in possession of the lot described in the scire facias by and with the consent of the said Euphrosine Leitensdorfer, his mother-in-law, who was the owner of said lot, and that said Fithian contracted with the plaintiff to furnish the materials and do the carpenter's work of said building, the jury will find for the plaintiff for the value of said work and materials, if the jury also believe from the testimony that the plaintiff filed his lien within six months after he had completed his work. 2. If the jury believe from the evidence that the work done and materials furnished by the plaintiff in the month of October, 1854, as described by the witnesses, necessary to the completion of said work and building, then the jury will find that said lien was filed within the six months after the doing of the work and furnishing the materials. 3. If the said Euphrosine Leitensdorfer gave possession of said lot to said Fithian, and he was the son-in-law of said Euphrosine, and she resided in the immediate vicinity of said lot, and could see the daily progress of the work by the plaintiff, and interposed no objection to the same, she is estopped, as far as plaintiff is concerned, to deny the right of said Fithian to erect said building and to contract for said work.”

Defendant then asked the following instructions, which were given by the court: “4. If the plaintiff upwards of twelve months after doing any work on the building in question repaired thither with McKown and Ligget, and, for the mere purpose of making claim that he completed the work on that occasion, nailed the nosing on the portico which has been spoken of by the witness of the plaintiff, then he has no lien and cannot recover in this action for any work done previously. 5. The plaintiff cannot recover as against the defendant, Leitensdorfer, unless he shall have shown that within thirty days of the doing of the work for which the lien is claimed he gave notice to her of his intention to hold the premises for the amount of his demand. 6. The plaintiff cannot have a lien for any work or materials which he shall not have shown to have been done and furnished towards the building described in the writ within the six months prior to the filing of the lien.”

The plaintiff asked the court to give the following instruction: “7. If the jury believe from the evidence the plaintiff contracted with the defendant Fithian to do the carpenter's work and furnish the materials for the same upon the building mentioned in the scire facias, then, until the completion of the work or the dissolution of the contract, the plaintiff's account runs, and he has six months thereafter to file his lien; but the mere doing some little job of work, for the purpose of procuring a lien, after the work has been done or the contract dissolved, will not continue the lien.” The court refused to give this instruction, as asked, but gave the same with the following modification: “ Provided, they also find that the work done and materials furnished were so done and furnished with the express consent of the other defendants who were the owners of the property, and such express consent must be proved.” Both parties excepted.

The plaintiff thereupon took a non-suit.

Whittelsey, Primm a...