59 Mo. App. 284 | Mo. Ct. App. | 1894
The only point presented for our consideration is whether the trial court erred in rejecting a material man’s notice of lien, which the plaintiff offered in evidence. The rejection of the notice resulted in a judgment against the plaintiff, as far as his lien right was concerned. The paper- is not in the record, but sufficient appears therein to show what some of its contents were, and the omission is entirely cured by an admission 'of defendant’s counsel in their statement
The action’is one by a material man against the subcontractors and owner. On the trial there was evidence tending to show the following facts bearing upon the admissibility of the rejected notice to wit: The defendant owner possessed only one lot on Westminster Place in the city of St. Louis, and had contracted with one Eysell to build a three story stone front house thereon. This contract was the only contract of any sort which the defendant owner had with Eysell. The owner admitted that he had reason to believe that the defendant subcontractors were doing the stone work on the house under a contract with Eysell. The lot on which the house was erected was lot number 27, in city block 5051 B., and had a front of fifty (50) feet on the north line of Westminster Place, by a depth of one hundred and fifty-five (155) feet to an alley, and was on the west side of King’s Highway. The subcontractors sued were Casey & Brothers.
This testimony being offered in aid of the notice first, and it being shown that the notice was served in due time upon the owner, the plaintiff offered the notice itself in evidence, which, according to the admission above, was of the following tenor:
“To James King, St. Louis, Mo.
“Take Notice: That the undersigned, John Barn-brick, holds a claim against your three story stone front house, situated on a certain lot of ground on the north side of Westminster Place, and situated 1306 feet and 3 1-á inches east of the east line of King's Highway, and having a frontage of fifty feet on the north line of Westminster Place and a depth of 155 feet to an alley, and bounded as follows: On the south by Westminster Place, on the west by Issic P. Lusk, on the north by a fifteen foot alley, and on the east by Horates M. Spen
“And take further notice that, unless you pay the same within ten days from the date of service hereof, I will file my lien against said building and land upon which the same is situated, and proceed to recover the same according to law.
“John Bambbick, “By Henby Batdoke, Agent.”
For the purpose of noticing at a glance the objections made to the sufficiency of this notice, we have italicised such portions thereof as contain a false description of the lot. It is conceded that the house itself was correctly described. The question thus arising for decision is to be decided by the true answers to be given to the following queries: Is so much of the notice, as contains a correct description of the house and of the city block wherein it is situated, a sufficient compliance with the requirements of the statute, and can the false description be rejected as surplusage, oris the false description an essential part of the notice, and, if not essential, is it so misleading as to avoid the notice on that account!
The notice which the statute requires is one sufficient to inform the owner that the claimant holds “a claim against such building or improvement setting forth the amount, and from whom the same is due.” The statute does not require that the land on which
Now, in the case at bar, the notice describes the building against which the claim is held as a three story stone front building, situated on a lot of fifty feet front on the north side of Westminster Place, such lot having a depth of one hundred and fifty-five feet to an alley, and being in block 5051 in the city of St. Louis. It could not be contended that this notice would not have been sufficient had it stopped there, considering the conceded facts that the defendant had only one lot in block 5051, that this lot had a front of fifty (50) feet and a depth ©f one hundred and fifty-five (155) feet, that it fronted on the north side of Westminster Place, and that the house erected'by him on said lot was a three story stone front house. The false location of the lot as being east of the east line of King’s Highway, when in fact the lot was west of King’s Highway, might be properly rejected as surplusage on the well known maxim, Falsa demonstratio non nocet. Thus in Willamette Co. v. Kremer, 94 Cal. 205, it was held that, where a claim of lien described
It results from the foregoing that, after it was shown that the owner had no other house on Westminster Place than the one in question, nor any other contract with Eysell than a contract for the building of this house, the court under the evidence erred in rejecting the lien notice offered in evidence. As this error was clearly prejudicial to the plaintiff, the judgment must'be reversed. We will say in addition,'as we have said heretofore, that the effect of a reversal of a judgment in a case like this is to reverse the entire judgment both as to contractor and owner, as there can be only one final judgment in a case, and the judgment against the owner of property is a mere
Judgment reversed and cause remanded.