Bolen Coal Co. v. Ryan, 48 Mo. App. 512

Bolen Coal Co. v. Ryan

48 Mo. App. 512 | Mo. Ct. App. | 1892

Ellison, J.

Plaintiff’s assignor furnished material and performed labor under one general contract with the owner, in the erection of eleven brick houses at $535 per house. Eight of the houses were built upon five contiguous lots, and three were built on two contiguous lots lying directly across an alley, fourteen feet wide. During the trial defendant introduced a receipt and release of the lien from the original contractor as to the three houses and two lots across the alley, whereupon plaintiff dismissed as to that property. *515Judgment enforcing the lien was rendered, for plaintiff against the eight houses and five lots. Defendants appealed. It was decided in Fitzgerald v. Thomas, 61 Mo. 499, and in Fitzgerald v. Thomas, 76 Mo. 513, that a single mechanic’s lien could not be had on several separate buildings, though they were erected on contiguous lots and under one general contract. After these decisions, the legislature added section 6729 to the lien law, wherein it is enacted that in such a state ■of case a single lien may be filed. The statute does not interfere with the foregoing decision as to the contiguity of the lots, but on the contrary is confirmatory thereof, in that it prescribes that a single lien may be had if the lots are contiguous. Now in the case at bar, three of the lots are separated from the otherfive by an alley. The lots upon which the buildings were erected are, therefore, not contiguous; for contiguous means to touch, or to be in actual contact.

Plaintiffs contend that, conceding the lots are not ■such as can be covered by one lien, yet they have a right to dismiss as to one division of the lots and enforce the lien as to the other, since the contract stipulated a certain price per house. A consideration arises here which makes it unnecessary to consider such question. The testimony shows that the material which ■ entered into the eight houses against which judgment was rendered was furnished more than six months before filing the lien. The last material therein, or work thereon, being about November 23, though the work on the three houses across the alley did not begin until the tenth of February following, and was finished the following March 10. The lien, by force of the statute, expires with the time limited within which it must be filed, which is six months after the indebtedness .shall have accrued.

But plaintiffs say that there was one general contract for all the buildings; that the indebtedness did .not accrue until that contract was fully performed *516which was on March 10. Whether the accruing of the indebtedness, within the meaning of the mechanics’ lien statute, will be governed by a contract which may stipulate for the payment of the contract price at a date subsequent to the performance of the contract, is not the question which plaintiffs’ contention presents; for it is assumed that the contract price was due upon the completion of the buildings. The meaning and true intent of plaintiffs’ contention is that, notwithstanding one or more of the buildings mentioned in the contract are such as cannot be covered by the lien, the time of finishing them shall be tacked to the time when those were finished which are covered by the lien. Thus the work or material on the unlienable buildings must operate to save or extend the time limited for the lienable buildings. We cannot allow this. If we did, it would be against the spirit of the law, and bring about unreasonable results. One contract might provide for the erection of a small structure at one place and a large structure at a distant place; the small one being completed in two months and the large one in two years, the •contract would not be performed until the completion of the large structure, yet it ought not to be supposed that the statute contemplates that a lien may be had against the small structure within six months after the completion of the large one.

Questions under the mechanics’ lien law are governed much by the statute of the particular state in which the question arises. By the statute of this state, section 6709, the lien must be filed with the clerk of the circuit court within a specified period “after the indebtedness shall have oxcrued.” Our construction of .this statute is that by the word “accrued” the lawmakers mean to say when the indebtedness becomes complete by performing the labor or furnishing the material, and that it would be considered complete when the last labor is performed or the last of the material is furnished. “Accrued” does not mean due. A man is in debt *517when the labor he hires is performed or completed, or when the material he purchases is fully furnished and. is unpaid for, and his indebtedness accrues at such, period. We have examined the cases cited by plaintiff and think, them not inconsistent with this opinion.

The foregoing considerations dispose of the case against plaintiffs, and we will reverse the judgment, and remand the cause with directions that the trial court disallow the lien.

All concur.