Walden v. Robertson

• Decision Date: 05 February 1894
• Citation: 120 Mo. 38,25 S.W. 349
• Parties: WALDEN et al. v. ROBERTSON et al.
• Court: Missouri Supreme Court

25 S.W. 349

120 Mo. 38

WALDEN et al. v. ROBERTSON et al.

Supreme Court of Missouri, Division No. 1.

February 5, 1894.

MECHANICS' LIENS — CONSTRUCTION OF STATUTES — CONTRACT — PROCEEDINGS TO PERFECT.

1. In Rev. St. 1889, § 6729, providing that when the improvement consists of two or more buildings united, and situated upon the same lots, or "upon" separate buildings upon contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building, the word "upon" should be construed "consists of."

2. Where plaintiff contracted to build the walls of a certain number of houses, or any less number defendant should name, at a fixed price per house, the houses were built under a general contract, within the meaning of Rev. St. 1889, § 6729.

3. Under Rev. St. 1889, § 6729, where several houses are built upon contiguous lots under a general contract, a mechanic's lien for the work and materials furnished can be filed at any time within six months after work upon the last house.

4. In order to entitle a person to file a general mechanic's lien under Rev. St. 1889, § 6729, he need not erect and complete the houses.

5. A mechanic's lien, including accounts for material furnished and for work done, may be good as to the material account, though bad as to the work account.

6. In making up the labor account, it is correct to give the number of thousand brick laid, and price per thousand for laying the same.

Appeal from circuit court, Jackson county; R. H. Field, Judge.

Action by Charles Walden and another against Lane D. Robertson and another to foreclose a mechanic's lien. From a judgment for defendants, plaintiffs appeal. Reversed.

N. F. Heitman, for appellants. I. J. Ringolsky, for respondents.

BLACK, C. J.

This was a suit to foreclose a mechanic's lien for materials furnished and labor performed in erecting the brick walls of six houses upon three adjoining lots, and for materials furnished and labor performed in erecting a portion of the brick walls of a seventh house upon the east half of another adjoining lot. The lots have a front of 50 feet each, a house being placed upon the west and one upon the east half of each of the three lots, and one upon the half lot, leaving a space of three feet between the houses. According to the record before us, Mr. Critchfield held the legal title to the above-mentioned and a number of other adjoining lots. The evidence tends to show, however, that he was a mere man of straw, and that the defendants Robertson and Snyder were the real owners. They started out with the intention to build 29 houses on these lots, all of the same size, and the same as to the brickwork. They entered into an oral contract with the plaintiffs, whereby the plaintiffs agreed to furnish the brick and other material and build the walls of the 29 houses, or any less number that defendants might thereafter conclude to build, for which the the defendants agreed to pay the plaintiffs the sum of $500 for each house. Payments were to be made as the work progressed, sufficient to enable the plaintiffs to pay for labor employed by them, and the walls of each house were to be paid for in full when the walls of such house were completed. Under this arrangement, the plaintiffs completed the walls of the six houses, and erected a portion of the walls of the seventh. The work was all done between the 8th of December, 1889, and the 12th February, 1890. Work ceased at the last-named date, because of a failure on the part of the defendants to comply with their contract. There was then due the plaintiffs, according to the evidence, $2,572. Plaintiffs filed one lien, setting forth their entire account for all the materials and labor, and seeking thereby to charge the three whole lots and the one half lot before mentioned. When the plaintiffs offered the lien in evidence, the defendants objected, because the evidence showed that the buildings were not erected under one general contract, within the meaning of section 6729, Rev. St. 1889, and hence a separate lien should have been filed against each house. The court sustained this objection, and excluded the lien, and this ruling presents the principal question in the case.

It was held in Fitzgerald v. Thomas, 61 Mo. 499, and in Fitzpatrick v. Thomas, Id. 512, that where separate buildings are erected upon separate lots, though contiguous, a...