United States Water Co. v. Sunny Slope Realty Co.

• Decision Date: 02 January 1911
• Citation: 152 Mo. App. 300,133 S.W. 371
• Parties: UNITED STATES WATER CO. v. SUNNY SLOPE REALTY CO. et al.
• Court: Missouri Court of Appeals

133 S.W. 371

152 Mo. A. 300

UNITED STATES WATER CO. v. SUNNY SLOPE REALTY CO. et al.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

1. MECHANICS' LIENS (§ 132)—FILING—TIME.

Under Rev. St. 1909, § 8217, requiring subcontractors to file lien accounts within four

months after their claims accrue, the period runs from the date when the material for which a lien is claimed is used in a building, and not from the date when it is delivered to the contractor.

2. MECHANICS' LIENS (§ 281)—VALUE OF MATERIAL—EVIDENCE.

The prices at which material was sold to a contractor are prima facie reasonable, but not conclusive in an action to enforce a lien against the building.

3. MECHANICS' LIENS (§ 48) — MATERIAL — ESSENTIALS TO LIEN.

Merely furnishing material to a contractor does not show one's right to a lien; use of the material in the building against which a lien is sought being essential.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by the United States Water Company against the Sunny Slope Realty Company and another. From an order granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

Meservey & German, for appellant. O. E. Robinson and H. H. McClure, for respondents.

ELLISON, J.

This action was instituted to establish and enforce a mechanic's lien. There was a verdict for plaintiff; but defendants afterwards asked a new trial, and it was granted. Plaintiff thereupon appealed from that order.

Plaintiff furnished material to a contractor who was building certain buildings for the owner. He furnished the material with the understanding that it was to go into the buildings and on their credit, and the material did afterwards enter into the construction of the buildings. Within four months after it was so placed in the buildings, plaintiff filed its account for a lien with the clerk of the circuit court; but this was more than four months after the material had been purchased and delivered to the purchasing contractor. The case involves a construction of section 8217, Rev. St. 1909, which reads that: "It shall be the duty of every original contractor within six months, and every journeyman and day laborer within sixty days, and every other person seeking to obtain the benefit of the provisions of this article within four months, after the indebtedness shall have accrued, to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him."

The particular point in controversy is whether the lien account of a subcontractor shall be filed with the clerk within four months after the material is sold and delivered to such contractor, or within four months after it is used in the building. It will be observed the statute reads that the lien account of the indebtedness must be filed within four months after it accrues. The question for decision is: Does that mean after it accrues against the contractor, or the building? We have concluded that it means the building.

While the material is sold to the contractor, and while it becomes an indebtedness which accrues against him from the time the...