63 Mo. App. 477 | Mo. Ct. App. | 1895
Action on mechanics’ lien. The contract under which it is alleged in the petition the work and labor were performed, and materials furnish
It further appears that the seven defendants in the judgment entered into the contract, but at no time paid any part of their subscription to the butter and cheese factory, nor did they, or any of them, become stockholders in the incorporated creamery association, nor have they, or any of them, any title to or interest in said lot, on which said butter and cheese factory was erected by plaintiffs. It further appears that all of the defendants who were parties to the contract, except the seven just referred to, paid up their respective subscriptions, so that nothing was claimed as against any of them or their interest in said butter and cheese factory, or the land on which the same is situate.
The defendant insists, as a ground for reversing the judgment, that the trial court erred in admitting in evidence, the contract, over its objection. The petition alleges that the contract entered into between plaintiffs and defendants was a joint contract; while that offered in evidence was not joint, but several. Davis & Rankin v. Hendrix, 59 Mo. App. supra; Davis & Rankin v. Barber, 51 Fed. Rep. 148; Davis & Rankin v. Belford, 70 Mich. 120; Frost v. Williams, 50 N. W. Rep. 964. The rule of practice which requires the allegata and probata to correspond, is an undeviating one. An allegation of a joint contract is not sustained by evidence of one not joint but several. Authority need not be cited in support of this statement of this old and familiar rule. It is manifest that the contract offered in evidence did not tend to prove the existence of that alleged in the petition, and, therefore, the action of the court in admitting the same was erroneous. .
The defendant next objects that the court erred in its action admitting in evidence the lien paper offered by the plaintiffs. It will be remembered that the contract for the work and labor performed and materials furnished, was entered into with all the defendants, except the creamery association, the corporation, which did not come into existence until after the performance of the contract. Now, the statute provides that certain designated persons may have a lien for work or labor done, or materials furnished, for any building or improvement upon land, under and by virtue of a “contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor,” by complying with its requirements. B. S., sec. 6705. But none of the defendants who made the contract' with
The great weight of authority is to the effect that corporations are not liable on contracts made in their behalf by their promoters, before the incorporation takes place. Cook’s • Stockholders & Corp. Law, sec. 707, and authorities there cited.
It necessarily results from these considerations that the defendants entering into the said contract with the plaintiffs were without authority to bind the creamery association subsequently incorporated. And the same is true, whether it is sought to enforce the lien against land, or against buildings, or other improvements, upon any lot of land situate in a city, town, or village. It appears the defendant creamery association acquired the title to the lot, against which it is sought to enforce the lien, by deed, not from the promoters, but from a stranger. The only theory upon which plaintiffs could possibly claim a lien as against the creamery association, is that of agency; but, as we have seen, the contracting parties were not agents for it in making the contract. The lien must have its inception in a contractual relation. It could have no existence, unless the work and labor performed, or the materials furnished, were under a contract with the then owner, or other person mentioned in the statute. McAdow v. Sturtevant, 43 Mo. App. 220.
Plaintiffs could, no doubt, recover in a separate action on tbe contract against each one of tbe contracting parties who bave made default in tbe payment of their subscription, but they bave not thought proper to proceed in tbat way.
We are of tbe opinion tbe judgment should be reversed.