Towner v. Remick

• Decision Date: 09 November 1885
• Parties: ROBERT TOWNER ET AL., Respondents, v. O. L. REMICK ET AL., Appellants.
• Court: Kansas Court of Appeals

19 Mo.App. 205

ROBERT TOWNER ET AL., Respondents, v. O. L. REMICK ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.

Reversed.

The facts are stated in the opinion.

J. D S. Cook and HENRY WOLLMAN for the appellants.

I. Plaintiffs must show that the lumber for which the lien is claimed was actually used in the construction of the building. Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 516; Schulenburg v. Institute, 65 Mo. 295; Deardorff v Everhart, 74 Mo. 39; Fitzpatrick v. Thomas, 76 Mo. 514. This was not shown by the evidence.

II. Plaintiff's books were not admissible in evidence, not being books of original entry. Kissock v. McPherson, 20 Mo. 310; Cozzens v. Barrett, 23 Mo. 544; 20 Mo. 13.

III. The contractors were not the owner's agents, and their admissions were not admissible against the owners. Deardorff v. Everhart, 74 Mo. 39.

IV. The evidence does not show that notice was given ten days before the lien was filed. Unless this was done, the lien is void. Sect. 3190, Rev. Stat.; Schubert v Crowley, 33 Mo. 564; Davis v. Schuler, 38 Mo. 24. The notice must be in writing, and complete in itself, and cannot be aided extrinsically.

HENRY D. ASHLEY for the respondents.

I. Plaintiffs do show that the lumber, for which lien is claimed, was used in the construction of the building, though the law does not require them to follow each piece of lumber specifically and affirmatively into the building. Phillips on Mech. Liens (2 Ed.) sect. 151. It was shown that lumber was furnished for and delivered at defendant's building, and the execution and genuineness of receipts was shown. Ibid, sect. 127.

II. Plaintiff's books were clearly admissible to show that lumber was sold on the credit of the building, and the sales tickets, sales books and ledger all showed lumber to have been sold on credit of building. Phillips on Mech. Liens, sect. 124.

III. Lumber was not furnished under two separate and distinct contracts, and the fact that part was " estimate stuff" and part " extras" did not make two separate and distinct contracts of a running account. Phillips on Mech. Liens (2 Ed.) sect. 62; Coal Company v. Steamboat, 36 Mo. 446; Ring v. Jamison, 66 Mo. 424; Iron Works v. Minn. & S. Co., 80 Mo. 265.

IV. Plaintiffs gave defendants ten days' notice that they held a claim against the building, setting forth amount and from whom same was due. This lien law is highly remedial, and notice will not be held insufficient on account of any technical objections. Dewitt v. Smith, 63 Mo. 263; Miss. Planing Mill Co. v. Church, 54 Mo. 520.

PHILIPS P. J.

This is an action by plaintiffs as sub-contractors to enforce a mechanic's lien on the property of the defendants, Walter A. Bunker and John McEwen. The defendants, O. L. Remick and John M. Stone, were the contractors to build a certain house for said Bunker and McEwen. As such contractors, they bought lumber, etc., from plaintiffs. After the work was done, and the owners of the building had paid off the contractors, plaintiffs attempted to perfect a mechanic's lien on the premises to secure a balance owing them by said contractors amounting to over one thousand dollars. The circuit court found the issues for plaintiffs, and after entering up judgment in personam against the contractors, Remick and Stone, foreclosed the lien against the property of Bunker and McEwen, and entered judgment in rem against the same. From this judgment Bunker and McEwen prosecute this appeal.

I. Occupying, as the plaintiffs do, the position of sub-contractors, as a pre-requisite to their right of action to enforce the lien against the property of the owners, Bunker and McEwen, the statute (sect. 3190), prescribes that they " shall give ten days' notice before the filing of the lien to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due." The notice given in this case is as follows:

" Mr. W. A. Bunker, Manager K. C. Newspaper Union:

DEAR SIR--Please to take notice that we hold in our hands for collection a claim of $1,373.60 for lumber furnished by Thompson, Towner & Co., at request of Remick & Stone; that this lumber was used in the construction of your property, corner of Ninth and Ann streets, and that we shall file a mechanic's lien for this amount upon said building and property, unless same is settled by April 6, next.

M. E. JONES and H. D. ASHLEY,

Per ASHLEY."

To this notice was appended the following certificate:

" Served the within notice on W. A. Bunker by delivering to and leaving with him a true copy thereof, this twenty-fifth day of March, 1882.

HENRY D. ASHLEY."

Is this notice a substantial compliance with the statute? Certainty to a common intent is sufficient in these notices. Adherence to mere form is not so essential as to substance; and such nicety and rigidity of construction should not be applied to this statute as would destroy its purpose or unduly perxlex and embarrass the remedy for the protection of the artisan and material man. And yet the courts cannot lose sight of the fact that such a right as the sub-contractors are seeking to enforce is one in invitum, so far as the owners of the property are concerned. Hoffman v. Walton, 36 Mo. 617. Between the owners of the property and the subcontractor there is no equity, because there is no privity of contract. Phil. on Mech. Liens, sect. 349. As the right to the extraordinary remedy pursued by the plaintiffs is conferred alone by statute, both on principle and authority, the statute must be followed in all its substantial requirements.

The first requisite of the section of the statute...