Walden v. Robertson

• Decision Date: 05 February 1894
• Citation: Walden v. Robertson, 120 Mo. 38, 25 S.W. 349 (Mo. 1894)
• Parties: Walden et al., Appellants, v. Robertson et al
• Court: Missouri Supreme Court

25 S.W. 349

120 Mo. 38

Walden et al., Appellants, v. Robertson et al

Supreme Court of Missouri, First Division

February 5, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Reversed and remanded.

Numa F Heitman for appellants.

(1) The lien for labor done and materials furnished under an entire contract upon several buildings owned by the same person and situated on the same or contiguous lots attaches upon the whole estate for the whole value of the labor and material although the contract specifies separate amounts for the work to be done on each house. The object of section 6729 was to do away with the rule laid down in the case of Fitzgerald v. Thomas, 61 Mo. 499. Bulger v. Robertson, 50 Mo.App. 499. Deardorf v. Roy, 50 Mo.App. 70; Heier v. Meisch, 33 Mo.App. 35; Schroder v Muller, 33 Mo.App. 28; O'Leary v. Roe, 45 Mo.App. 567; Twitchell v. Devens, 45 Mo.App. 283; Cole v. Baron, 8 Mo.App. 513; Page v. Bettis, 17 Mo.App. 376; Iron Works v. Smelting Company, 80 Mo. 269; Wall v. Robinson, 115 Mass. 429; Batchelder v. Rand, 117 Mass. 176; Company v. Loomas, 2 Disney (Ohio), 544. (2) The mechanics' lien law is to be liberally construed. DeWitt v. Smith, 63 Mo. 263; Holyhour v. Meer, 59 Mo. 434; Gibson v. Nagel, 15 Mo.App. 596; Oster v. Rabeneau, 46 Mo. 595; Putnam v. Rose, 46 Mo. 336; McAdow v. Sturtevant, 41 Mo.App. 220; Hayden v. Logan, 9 Mo.App. 492; Mocham v. Sullivan, 1 Mont. 470. (3) Even if the court had been right in its ruling that separate liens ought to have been filed, yet in this particular case he ought to have admitted the joint lien in evidence and sustained the lien, because informalities in mechanics' liens by which no one is prejudiced are to be disregarded, and in the matter of construction, each case depends upon its own facts. DeWitt v. Smith, 63 Mo. 263; Henry v. Plitt, 84 Mo. 237; 15 Am. and Eng. Encyclopedia of Law, p. 143. (4) The foundation of a mechanic's lien is the doing of the work and furnishing the material. It is not founded upon contract, at all. The contract is incidental, and not fundamental. Lowis v. Cutter, 6 Mo.App. 54; Hannon v. Gibson, 14 Mo.App. 33; Judd v. Duncan, 9 Mo.App. 422; Fitzgerald v. Thomas, 61 Mo. 499; 15 Am. and Eng. Encyclopedia of Law, sec. 13, par. 1, p. 104, and note 1, p. 105. (5) The plaintiffs' demand in this case, after all their work was done and materials furnished under the one contract in evidence, constituted but one cause of action, and it is a general rule that a cause of action can not be split or divided so as to support two or more actions. Appellants had no power to split up an entire demand and multiply costs by filing and enforcing several liens for one entire demand. The law abhors a multiplicity of liens and lawsuits. Thoman v. University, 73 Ill. 310; Skeen v. Co., 42 Mo.App. 158; Robbins v. Conley, 47 Mo.App. 502; Funk v. Funk, 35 Mo.App. 246; Co. v. Traube, 59 Mo. 355-362.

I. J. Ringolsky for respondents.

(1) The charge, in the lien account filed, of $ 1,239.90 for labor is a lumping charge not fixing the price per diem nor stating the number of days' work. A lumping charge is not a just or true account. Rude v. Mitchell, 97 Mo. 365; Holtschneider v. Page, 51 Mo.App. 285; Smith v. Haley, 41 Mo.App. 611; Neal v. Smith, 49 Mo.App. 330. An account is a detailed statement of mutual demands between the parties. 45 Mo. 574. It is the itemized account, and not the contract, which shows the lien claim. 6 Mo.App. 56; see, also, Coe v. Ritter, 86 Mo. 286; State, etc., v. Smith, 89 Mo. 408. (2) The lien must be filed within six months from the time the indebtedness accrued. The demand on each house accrued when each house was finished. This is expressly held in Coal Co. v. Ryan, 48 Mo.App. 516. The date of filing the lien must be computed from the date of the last actual delivery. Miller v. Whitelaw, 28 Mo.App. 639. (3) The dates given of each item of the account filed and offered in evidence show that the lien had expired for the material furnished before the statement offered in evidence was filed with the clerk. (4) The work done by the plaintiff was not done under one general contract entered into before the work was done. Fitzgerald v. Thomas, 61 Mo. 499. (5) Plaintiff's evidence shows that he had no contract with Critchfield, the owner of the property, that would defeat his recovery in this case. 37 Mo. 578; 36 Mo. 451.

OPINION

Black, P. 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 fifty 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 twenty-nine houses on these lots, all of the same size and the same as to the brick work. They entered into an oral contract with the plaintiffs, whereby the plaintiff agreed to furnish the brick and other material and build the walls of the twenty-nine houses, or any less number that defendants might thereafter conclude to build; for which 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 eighth of December, 1889, and the twelfth of 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, Revised Statutes of 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.

1. It was held in Fitzgerald v. Thomas, 61 Mo. 499, and in Fitzpatrick v. Thomas, 61 Mo. 512, that where separate buildings are erected upon separate lots, though contiguous, a single lien filed against all the lots, for the aggregate value of the material and work, was invalid. The opinions in those cases were promulgated in 1876, and in 1877 the legislature passed what is now section 6729 of the Revised Statutes, 1889, for the evident purpose of changing the rule as declared in those cases. That section provides: "When the improvement consists of two or more buildings united together and situated upon the same lot or contiguous 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 for the work done or materials furnished in the erection of such improvements."

There is some ambiguity in this section, arising from the use of the word "upon" in the second clause. We agree with the Kansas City court of appeals that "upon" as first used in that clause means "consists of." Deardorff v. Roy, 50 Mo.App. 70. The second clause, therefore, provides for those cases where the improvement consists of separate buildings upon contiguous lots; and such is the case now in hand. The question, then, is whether the walls of the six or seven houses were erected under "one general contract," within the meaning of the statute. It is argued that they were not because the contract does not fix the exact number of houses to be erected, and because the contract fixes the price to be paid for the walls of each house as it is completed.

It is to be observed in the first place that these betterment statutes are remedial in their character, and, when reasonable and not oppressive, are to be liberally construed. Such is the better rule, though authorities to the contrary may be found. Putnam v. Ross, 46 Mo. 337; Oster v. Rabeneau, 46 Mo. 595; De...