81 Mo. App. 337 | Mo. Ct. App. | 1899
This is an action brought by a materialman to enforce a mechanic’s lien against three lots and a portion of a fourth lot in this city — all contiguous — and the improvements thereon, to which the owners and certain encumbrancers are made party defendants. A judgment was had for $2,432.36, and a lien therefor established against six houses built upon the lots. Some of the defendants appealed.
• The first error assigned relates to the ruling of the court in permitting respondent to enter a credit on the lien account upon the following statement: “That lumber aggregating $305.24 as charged, described in five of said shipping tickets, was delivered at the planing mill of said firm (Frank H. Gray Bro.), as shown on the face of said tickets, and that it had no evidence to show that the same was delivered at said premises, or used in the construction of said buildings.” It being insisted by appellant that this voluntary credit so given by respondent was known by if to have an unjust element in its lien account when the same was filed. The evidence on the trial showed that the entire lien account, consisting also of the items for which the credit was afterward entered, was for material, all of which had been ordered by the owners to be used in the construction of the improvements sought to be charged in this case. It further appeared that those items comprising said credit were shown to 'have been delivered by respondent at the mill in order to be surfaced there and then
Appellant also claims that the general contract under which the material was furnished for the improvements in question, were shown by the evidence to have been made with the partnership of Prank H. Gray & Bro., and that the evidence also showed that the members of such firm held the legal title to the land upon which the improvements were erected, and therefore (as appellant thinks) there is no evidence to show that the contract with respondent was made by the owners of the land. There is no merit whatever in this contention. A contract made with a firm is in legal effect one made with each member of the firm. All the statute
It is further insisted by appellant that although section 6705 of the Eevised Statutes of Missouri 1889 permits a lien claim which accrued under a general contract for constructing buildings on contiguous lots to be enforced, yet no such lien can be established unless the lien .account shall specifically apportion to each building the amount of the material used in its construction. The section of the statute in question was before the supreme court in Walden v. Robertson, 120 Mo. 38. It was fully considered and construed in that case, and the conclusion reached that it would entitle a party, who had agreed under one contract with the owners to erect a number of houses for $500 each, to enforce in one suit and against all the houses the amount due under his contract. The object of the statute was remedial and intended to do away with the necessity of filing liens against each building for the amount used therein. If the construction should be put upon it (contended for by appellant), there would be no substantial difference between the rights of a ■ materialman before and after the passage of the amendatory act, or rather its purpose to enlarge and extend his rights and remove the practical difficulty of showing what amount of material was used in each particular dwelling, would be defeated. We can not therefore concur in appellants’ view of this statute.
Our conclusion is that the judgment in this case should be affirmed.