Bulger v. Robertson

50 Mo. App. 499 | Mo. Ct. App. | 1892

Dill, J.

— Defendants owned a number of fifty-foot lots in Westport, and conceived tbe idea of constructing thereon some two-story brick bouses — each bouse to occupy a frontage of twenty-five feet, so tbat there would then be on each lot two bouses. It seems to have been tbe original intention to construct twenty-nine of these bouses, and work was begun witb tbat in view.

Plaintiff entered into an agreement witb defendants to furnish tbe materials and do all tbe work necessary for roofing tbe several bouses. He1 was to complete tbe roofing — putting on all tbe slate and tin work — and was to receive therefor $170 for each bouse tbat defendants might erect, whether twenty-nine bouses or less. Two bouses were completed, and plaintiff supplied tbe necessary slate and tin to roof them in; a third bouse was brought nearly to completion, and on tbis plaintiff placed tbe necessary tin work preparatory for tbe slate. But here the owners ran out of money, and abandoned the enterprise. Plaintiff failed to get pay for the work done, and brought this action to enforce a mechanics’ lien against the lots on which the houses were erected. Plaintiff sought by this action to establish one lien for the tin and slate work done on three houses, situated on the two platted contiguous town lots, numbered 18 and 19, of Dudley’s addition to Westport. The lots were each fifty feet, fronting north, and lot 18 adjoined 19 on the west. One house was built on the east half of 18, one on the west half of 19, and the other on the east half of 19. The two outside houses (that is, those-erected on the east half of 18 and the east half of 19) had both tin and slate work, while the middle house (or that one erected on the west half of 19) only had tin work. All the material and labor furnished in roofing the three houses was contained in one lien account, but the items of tin and slate were stated separately. At the trial the court excluded the lien account, for the tin work, on the ground that it was not sufficiently itemized, but permitted the hen to be established for the slate work which was done on the east half of 18 and the east half of 19.

Plaintiff had a judgment for the enforcement of a mechanic’s -lien against both lots 18 and 19, for the work thus done and materials furnished for the two houses on the east half of 18 and east half of 19, and defendants appealed.

The right to the enforcement of one lien for this work done on the two separate buildings on two distinct lots must come from section 6729 of the present mechanics’ lien law. That statute, in effect, provides that only one lien shall be necessary where the separate buildings shall be erected under one general contract and v/pon contiguous lots.

I. It is insisted by defendants’ counsel that plaintiff did not furnish this labor and material on these separate houses on different lots, “under one general contract.” We bear in mind the oral and printed argument of defendants’ counsel in this matter, but must say that we are not convinced of its soundness. The testimony shows that Bulger contracted with the owners to roof each and all of the houses they were then building, and about to erect, on these adjacent lots, — whether one, two or the whole contemplated twenty-nine, — and.the price fixed was $170 per house. It was a general contract in that it was not special or particular, or confined to any single and definite building — it related to all. It comprehended the doing of work on the entire number of buildings then in course of construction. Whether the agreement was to roof ten buildings at $170 each, or ten buildings for the gross sum of $1,700; in either case it would surely be known as one general contract. The raje adopted by the parties merely to fix the amount of compensation to be paid would clearly not destroy the general nature of the understanding and agreement, nor convert such one general contract into various distinct and separate contracts.

II. As a further objection to the enforcement of this lien it is claimed that these two buildings are not “upon contiguous lots.” This contention has for its basis the fact, that although the two houses on which the slate work was done are located on adjoining platted lots, yet as the two buildings are apparently separated by another house (also located on one of the lots), and that the owner had made separate deeds of trust on each half lot, then it is contended that this effected a division of said fifty-foot lots into twenty-five-foot lots, and that the two houses on which the work was done were thus thrown on lots that were not contiguous. We must hold this point, too, against the defendants. “Contiguouslots,” referred to in the statute, are intended to mean the lots that are hounded and described on the recorded plats of cities and towns (where there is any such platting), and such as lie adjacent or adjoining to each other. Fitzgerald v. Thomas, 61 Mo. 500. Lots 18 and 19, on which are situated the two buildings in part constructed by this plaintiff, are adjoining, platted lots, and are, therefore, contiguous lots.

III. Neither is there any merit in the further objection that the lien as filed is uncertain and meaningless. The account, it is true, mentions certain tin work done by the lienor on the three houses situated on the two lots, and these items were by the court excluded, because not specifically itemized. However, the non-lienable are easily separated from the lienable items, and, with these out, there remained a just and true account of the slate work done on two houses. The account on the slate work reads: ‘ ‘ January 20, to twenty-four squares to each of the two houses, one on lot 18 and oneonlotl9 — $192. ” Thiswasthat “true description of the Iproperty, or so near as to identify the same, upon which the lien is intended to apply,” etc., as required by section 6709 of the mechanics’ lien statute.

As against the defendants, there appearing no error in the record, the judgment is affirmed.

All concur.