33 Mo. App. 404 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action was brought before a justice of the peace to enforce a mechanic’s lien for materials furnished by the plaintiffs as sub-contractors, under B. C. Patterson, original contractor. The statement filed before the justice of the peace was drawn so as to charge as the contractors, not only B. C. Patterson, but also J. A. Patterson and George N. Truesdale, who were
I. The statement of cause of action before the justice recites the furnishing of the materials, as follows: “ That said B. C. and J. A. Patterson and George N. Truesdale, as such contractors, bought of plaintiff and used in the construction of said building the materials set out in the account herewith filed, and the same entered into and. became a part of said building, owned as aforesaid, and that the defendants are now enjoying the use of the same upon the said real estate owned by said Ritter and others ; that in accordance with the terms and conditions of its contract with said B. C. and J. A. Patterson and George N. Truesdale, plaintiff has furnished materials of the value of $126.34, in, about and upon said real estate owned as aforesaid, the particulars of which indebtedness will more fully appear in the bill of items thereof hereto annexed.” It is perceived that there is here no allegation that the materials were furnished for the building as required by section 3172, Revised Statutes. By the terms of that statute, the right to the lien of a materialman is predicated on his furnishing “ any materials, fixtures, engine, boiler, or machinery, for any building,” etc. This is held to mean that, in order to support a lien, the materials must have been furnished on the faith or credit of the structure into which they enter. It is not enough that materials were furnished by the plaintiff to the contractor on his general credit, and that the materials can be traced into the particular building. Rand v. Grubbs, 26 Mo. App. 591. Two things must undoubtedly concur: (1) The materials must have been furnished for the building, and (2) as held in several cases, they must have actually' been used in the construction of the building. Scholenberg v. Prairie Home Institute, 65 Mo. 295; Fitzpatrick
II. In view of the course we take in remanding the cause, it seems necessary to notice another point which was made by the appellants. It is-claimed by the appellants -that the statement of cause of action, as originally framed, did not contain any averment that
The judgment of the circuit court is accordingly reversed and the cause remanded.