Wescott v. Bridwell
| Decision Date | 31 March 1867 |
| Parties | RUSSELL H. WESCOTT, Appellant, v. RICHARD F. BRIDWELL, ALFRED GRABLE, HENRY L. CLARK, ROBERT M. RENICK, FREDERICK SCHULENBERG, AND ADOLPHUS BRECKLER, Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Land Court.
P. C. Morehead, for appellant.
E. C. Kehr, for respondent.
This was a proceeding instituted in the Land Court for St. Louis county in accordance with the provisions of an act entitled “An act for the better security of mechanics and others erecting buildings, or furnishing materials for the same, in the county of St. Louis.”
No declarations of law were asked, and no objection made at the trial to the introduction of testimony.
We think there was no sufficient reason for the granting of a new trial, and the only question that need be discussed at all is the alleged irregularity of the judgment.
Wescott, the plaintiff below, claimed to be a sub-contractor under the defendants Bridwell & Grable for work and labor done and materials furnished in and about the erection of a house the property of the other defendant, Clark. Judgment by default was taken against the defendants Grable and Clark for failure to answer, but was not further prosecuted as to either.
The other defendant, Bridwell, filed his answer denying the truth of the account sued upon, and setting up an off-set, to which plaintiff replied.
Upon the issue thus presented the parties went to trial, which resulted in a verdict for the defendants for $397, and judgment was entered accordingly.
The argument of counsel for the appellant is based upon the idea that the owner of the property to which the lien attached was in reality the debtor, and the contractors (at whose instance and request the work was done and the materials furnished) were merely his agents. It is insisted, therefore, that a demand due to the contractors, or either of them, was not properly the subject of a set off against the plaintiff's claims.
The former adjudications of this court upon that point seem to be overlooked, as no reference was made to the cases in which it arose. In Wibling v. Powers, 25 Mo. 599, the cause had been dismissed as to the contractor, treating him as a mere nominal party to the record, and judgment taken against the owner of the property alone. The court unhesitatingly held this to be erroneous. Judge Scott, in delivering the opinion of the court, says, ...
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