No. 16,131 | Kan. | Jul 3, 1909
The Chicago Lumber & Coal Company prosecutes error from a ruling sustaining a demurrer to its petition seeking the enforcement of a mechanic’s lien. It contends that the petition states a cause of action against the owner of the property, Mrs. J. H. Washington, upon the theory that material for her building had been sold by the plaintiff directly to her. This theory, however, is inconsistent with the petition, which alleges that she entered into a contract with Moore, Robison & Co. to construct the building, and that this firm bought of the plaintiff the material for which the lien is claimed, and used it for that purpose. The pleading also avers in substance that the material was so bought and used with th'e knowledge and consent of Mrs. Washington; that the account for it, which had been opened against Moore, Robison & Co., was afterward transferred, for the plaintiff’s convenience, to an account against her husband, who acted as her agent; and that the material was furnished'4 by the plaintiff to her through such firm in the manner and for the purpose aforesaid. These averments, however, do not amount to a statement that the material was actually sold to Mrs. Washington, and are therefore insufficient either to charge her -personally with the indebtedness or to form the basis for establishing a lien on the theory suggested. No liability against the owner arose from the fact that she consented to the contractor’s buying the material from the plaintiff and using it in constructing her house. The transfer of the account to the name of her husband, for the convenience of the plaintiff, was a mere matter of bookkeeping, and could not change the real nature of the transaction. The statement that the material was furnished to the owner, through the contractor, “in the manner and for the purpose aforesaid,” must be con
The remaining question is whether the statement filed is sufficient to support a subcontractor’s lien. The statute requires such a statement to set forth “the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed.” (Civ. Code, § 632.) All these requirements, excepting that relating to the name of the contractor, are sufficiently met. The portion of the statement material to the present inquiry reads as follows:
“That . . . J. H. Washington was the owner of the following real estate . . . ; that . . . J. H. Washington and Moore & Robison did purchase of the said Chicago Lumber & Coal Company certain building material, according to schedule hereto annexed, to be used in the construction of a certain dwelling-house on the above-described real estate; that the said Chicago Lumber & Coal Company did furnish the material applied in, about and upon the buildings and improvements aforesaid, an -itemized statement of which is attached hereto and made a part hereof, marked ‘Exhibit A’; that said material was actually used in the construction of and erection of said buildings and improvements . . . ; that there is due and owing the said Chicago Lumber & Coal Company from the said J. H. Washington and Moore & Robison, for said materials, the sum of $1400.85.”
The allegations charging the owner with direct personal liability for the debt are not appropriate to a statement for a subcontractor’s lien; they add nothing to it, but they do not vitiate if it is otherwise sufficient. (Cunningham v. Barr, 45 Kan. 158" court="Kan." date_filed="1891-01-15" href="https://app.midpage.ai/document/cunningham-v-barr-7888235?utm_source=webapp" opinion_id="7888235">45 Kan. 158; Hydraulic Press Co. v. McTaggart, 76 Mo. App. 347" court="Mo. Ct. App." date_filed="1898-11-01" href="https://app.midpage.ai/document/hydraulic-press-brick-co-v-mctaggart-8261975?utm_source=webapp" opinion_id="8261975">76 Mo. App. 347, 352.) The name of the contractor, however, is an essential part of the statement, the omission of which is fatal. (27 Cyc.
“The amount claimed . . . is . . . for material furnished as aforesaid under contract made by and between this claimant on the one part and the owner of said premises and a contractor, J. L. Buckner, between whom and the owner of said premises some arrangement had been made by which said Buckner was to assist in the purchase of the material, aforesaid, the exact nature of which arrangement is unknown to this claimant.” (Page 45.)
The court said:
“The statute provides that ‘the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days herein-before specified’ — that is, from the date when the material was last furnished. No risk was incurred by payment to Buckner by the church trustees [the owners], because plaintiff does not assert in the lien or notice that Buckner was the ‘original contractor.’ There seems to have been a studied purpose of the lien claimant not to place itself in the attitude of a subcontractor dealing alone with Buckner. It so phrased the lien statement that it might be available' if the evidence showed it to be either the original contractor or a subcontractor.” (Page 48.)
The statement in the present case, considered as one for a subcontractor’s lien, is defective in this; that while it recites that the claimant sold to Moore & Eobison certain material which was intended to be used in building a house on Mrs. Washington’s land, and was in fact so used, it does not say that Moore & Eobison sustained any contractual relations with Mrs. Washington. Nor can that fact be inferred from the mere circumstance of their incurring an obligation for
The judgment is affirmed.