Brown v. Wright, 25 Mo. App. 54

Brown v. Wright

25 Mo. App. 54

Mo. Ct. App.

1887

Check Treatment

Rombaher, J.,

delivered the opinion of the court.

The plaintiffs are lumber dealers, who contracted with the defendant, Wright, to furnish certain lumber to be used in the construction Of a hotel building to be *56erected by the defendant, the Ozark Hotel' Company. All of the lumber thus furnished was used by Wright in the construction of the hotel building, and a balance of $716.30 remaining unpaid to the plaintiffs, they filed a lien on the hotel and lots whereon the sаme is erected, having first given the statutory notice of their intention to do so to the defendant, the "Ozark Hotel Compаny.

The plaintiffs thereupon brought this suit against Wright, the contractor, the Ozark Hotel Company, a corporation, and the defendants, O’Hay and Kenna, who ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are stated in the petition as owning some interest in the property. The trial resulted in а judgment in the plaintiffs’ favor both as to the debt and lien.

The defendants filed motions for new trial and in arrest, which were overrulеd, whereupon they appeal. They now assign, in support of their motion in arrest, the fact that the petition statеs no cause of action for a lien, because it does not contain a description of the propеrty, and because E. H. Kenna was not mentioned in the lien papers as owner, nor served with notice of the lien.

The оbjections are not worthy of serious notice. The petition described the property as “a certain brick building known as the' Ozark Hotel, situated on a lot or tract of land known and described as follows: Lots nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, and eighteen (9 to 18) in block thirty-nine (39) in the town of North Springfield, in Cfreene county, аnd state of Missouri,” a description sufficiently definite for all purposes. Phil, on Mech. Liens, sects. 379, 380, and cases cited. Nor was it necessary to mention E. H. Kenna, either in the lien papers or in the petition, or to notify him of the propоsed filing of the lien, in any manner. It is not claimed that he was the owner of the property, either when the contract was made, or when the materials were furnished. He appears to be a trustee in a subsequent deed of trust, and was in no sense an owner within the provis*57ions of sections 3176 or 3190, of the Revised Statutes Kuhleman v. Schule, 35 Mo. 142.

In order to pass intelligently on the merits of the defendants’ motion for new trial, a statement оf the facts, as disclosed by the uncontroverted evidence, is' essential. It appears that Wright contracted in writing with thе Ozark Hotel Company, a corporation, to do certain work and furnish certain materials for the erectiоn of this building, for the sum of $12,536. The plans were mislaid shortly after the work began, and thereafter Wright proceeded and ereсted the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍building, under the instructions and supervision of the president of the company, as it seems, without any regard for the details of the contract. It appears, however, further, that the company accepted the work when completed, and paid for it, with the exception of twenty-two hundred and fifty dollars, which amount it retained, for the purposе of discharging claims for labor and material aggregating $1,368.75, of which amount the plaintiffs’ claim formed a part.

It further appeared, that a few inches of one wall of the structure, sought to be charged with the.lien, stood outside of the lots described in the petition; also, that a very small portion of the lumber was used on a porch connected with thе building, but not on any of the lots; also, that one of the lots was marked on the plat of the town as nineteen instead of sеventeen, but was described in the deeds to the Company, and from the Company to Kenna, trustee, as seventeen (whiсh is evidently the true description thereof, the number on the plat being a mere clerical mistake).

A point strenuously urged by the appellants is, that the president had no power to change the written contract, and, therefore, the work and material were not furnished under any contract with the hotel company. Conceding the correctness of the premises, the con. elusion does not follow. In this state a builder has a elaim for the value of his labor and matеrial, even *58though he departed from the terms of an express contract, and even ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍though he would have failed in a suit upon the express contract. Lee v. Ashbrook, 14 Mo. 379; Yeats v. Ballentine, 56 Mo. 536; Eyerman v. Mt., Sinai Cemetery Ass'n, 61 Mo. 489. In this case the owner accepted the work; it does not even appear that any objection was made to it, and neither of the defendants can now be heard, in a suit by a material man, whose material they have thus used and appropriated, to aver, that all the terms of the express contrаct between the owner and main contractor have not been complied with.

Neither is the objection tenable, that the property is not sufficiently described in the petition. In Brown v. La Crosse City (16 Wis. 555), the court held that a description in a complаint was sufficient, which charged a lien on the several “buildings known as the Gras Works of the La Crosse City Gras Light ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and Coke Company, situated on lots numbered eight, nine, etc., in block fourteen,” whereas the buildings were situated on other premises in the same сity. See, also, Strawn v. Cogswell, 28 Ill. 457; McCoy v. Quick, 30 Wis. 521; De Witt v. Smith, 63 Mo. 263. The lien in this instance was charged on the lots, according to their description in the deed under which the defendants claim ; that the description of one of the lots on the plat is different, is wholly immaterial. The lot is sufficiently identified by the structure. But were it even otherwise, it is not conceivable how the defendants could sustain any injury, if a lien covеred a lot to which they had no title. Holland v. McCarty, 24 Mo. App. 82. The purchaser under the lien can acquire no greater title than the owner hаs. Owing to the fact that the building projects a few inches on a stranger’s ground,' the purchaser may be evicted from that portion of the premises. That, however, is a risk which he assumes, and which in no way concerns the owner. The *59title is not litigated in this proceeding. Fleitz v. Vickery, 3 Mo. App. 592.

It follows from the foregoing that the judgment of the court, under the uncontroverted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍facts, was for the right party, and must be affirmed, as the only correct conclusion.

All the judges concurring, the judgment is affirmed.