41 Mo. App. 215 | Mo. Ct. App. | 1890
One Frazier was contractor with Laura F. Higgs for the erection of a block of buildings on land belonging to Mrs. Higgs in Kansas City. Defendants
The sole point we are called upon to consider relates to the sufficiency of the lien filed by Downey in the office of the circuit clerk, November 1, 1886.' The specific objection to the lien is that it omits to state the name of Frazier as contractor with Mrs. Higgs. The notice given on October 20 (ten days preceding the day the lien was filed) advised defendant Higgs of the furnishing of the materials to Richards & Banfield and that they were subcontractors under said Frazier; but the sworn account and statement of Downey, filed in pursuance of said notice, states nothing more, in this regard, than that the materials were ‘ ‘ furnished by him under contract .with Richards & Banfield to, and for, the buildings and improvements described as follows,” etc., leaving out the name of Frazier as contractor with defendant Higgs. It is claimed by defendant’s counsel, and urged, too, with much force and ability, that thus omitting to insert the name of the original contractor Frazier in the plaintiff’s sworn account vitiates the lien.
Since the plaintiff was not the “original contractor,” or “journeyman” or “day laborer” mentioned in section 6709, Revised Statutes, 1889, .which declares the manner of placing a mechanics’ lien on real estate, it was required of him, within four months after the indebtedness accrued, to file with the clerk of the circuit court of Jackson county a just and true account of his
By the terms of the section 6705 (the first section of the mechanics’ lien law) this plaintiff was given a lien for materials that he might furnish for constructing these buildings “under or by virtue of any contract * * * with any subcontractor,” etc. Preparatory to filing his lien the plaintiff was required by section 6723, ten days before such filing, to give Mrs. Higgs, the owner, notice of the claim he held against her building “ setting forth the amount thereof and from whom the same is due.” Section 6713 (providing for parties to the suit to enforce the lien) directs “in all suits under this article the parties to the contract shall * * * be made parties,” etc. Now under these various sections, viz.: 6705, 6723 and 6713, Richards & Banfield, as to the plaintiff at least, were contractors. They were the parties with whom he contracted to furnish materials to go in Mrs. Higgs’ buildings. Richards & Banfield were the proper contracting parties to name in the notice to Mrs. Higgs, warning her of the charge plaintiff had against her property. Said Richards & Banfield were clearly the persons “from whom said claim was due,” and directed by section 6723 to be named in the notice. They, too, are “ the parties to the contract ” who must be made
The contract, which is “the subject-matter of inquiry” for the enforcement of plaintiff’s lien, is the contract between Richards & Banfield and said plaintiff, and hence said Richards & Banfield are necessary parties defendant in plaintiff’s suit, while said Frazier, the original contractor with Mrs. Higgs, is not a necessary party. See cases last cited. Since then Richards & Banfield, under section 6705, are the contractors with whom plaintiff agreed to furnish these materials in the construction of Mrs. Higgs’ buildings ; since too, under section 6723, said Richards & Banfield were the contracting parties necessary to be named in the notice to be served on Mrs. Higgs, reminding her of the lien thereafter to be filed, and since, too, said Richards & Banfield were the contractors ( and the only contractors) intended to be included in the suit to enforce the lien, we are of the opinion that the same Richards & Banfield fill the description of contractors, under section 6709, and which were necessary to be named in the sworn statement and account filed in s the circuit clerk’s office.
Holding these views, then, the judgment of the circuit court must be affirmed.
