155 Mo. App. 331 | Mo. Ct. App. | 1911
The petition alleges that plaintiffs compose a partnership in the plumbing business in the city of St, Joseph, and as such were subcontractors in furnishing material and labor in putting in the plumbing in defendant’s house, and this action is to enforce a mechanic’s lien therefor. The judgment in the trial court was for the plaintiffs.
The account is composed of a number of items not objected to, aggregating with those complained of, the sum of $467.20. Those complained of are as follows :
“Water Company, $4.75; lead in street, $7.50 $12.25
Cleanouts and ferrils 2.50
Plumbing permit, $5.00; sewer and ■ water permit, $2.00 • 7.00
Hangers, screws, gasoline, putty, etc. 5.00
Laborers’ time 25.00
Plumbers’ time 80.00
Drayage 5.00
Putting in two floor drains in basement 12.00
Galv. vent and fittings 7.00”
The items “Water Company, $4.75” and “lead in street, $7.50” are so indefinite and unspecific as to be improper as against the owner in a bill by a sub-contractor with whom the owner has not dealt and who must
In Henry v. Plitt, 84 Mo. 237; McDermott v. Claas, 104 Mo. 14, and Mo. Valley Stone Co. v. Brown, 50 Mo. App. 407, it was held that fences and sidewalks, if constructed with the building and under one contract, were lienable, though the walk was not on the lot. Since those cases the statute has been amended so as to provide a lien for sidewalk independent of the building. But the principle of the decisions remains in force. In Pullis v. Hoffman, 28 Mo. App. 666, a lien was allowed for illuminating tiling, extending into the sidewalk, which lighted the basement. And it was held in Beatty v. Parker, 141 Mass. 523, that a lien could be had for a drain pipe constructed with the house, extending through the cellar wall into the yard and thence into the street into the sewer. This case seems favorably cited in Dugan Cut Stone Co. v. Gray, 114 Mo. 497.
We therefore hold that if the item “lead in street” had been stated so as to be understood and "it was thereby seen that it connected or was used in connecting the water, gas or sewer, with those pipes in the street, it would be lienable. The item “Water Company” we have no means of deciphering and therefore cannot comment upon it.
The items “Plumbling permit, $5; sewer and water permit, $2” were shown at the trial to mean a special license from the city authorities to do the plumbing, and a permission to connect with the sewer and water pipes in the street. The statute (sec. 8212, R. S. 1909)
The other items are sufficiently specific to be understood when considered with the account as' a whole. “Drayage” may well be classed as a part of the labor; and “Plumbers’ time” can only be understood as the time they were engaged in labor at the work of which the account, as a whole, was the result. It is specific in that it designates the kind of labor.
The petition alleged that within four months after the account “became due” he filed a statement, etc. The allegation should have been that the account “accrued.” The statute so requires; and we have held that there is a material difference between the two words “due” and “accrue.” An account may accrue long before it has been stipulated that it is to be due and payable. [Bolen Coal Co. v. Ryan, 48 Mo. App. 512; Great Western Mfg. Co. v. Burns, 59 Mo. App. 391; Fire Extinguisher Co. v. Farmers El. Co., 165 Mo. 171, 180; Drey v. Ridpath, 60 Mo. App. 134, 140; U. S. Water Co. v. Sunny Slope Realty Co., not yet reported (133 S. W. 371.).] But there was no objection made to the petition at or before the trial, and we are inclined to hold it sufficient after verdict.
The result is that the items we have mentioned, aggregating $44.25, should have been disallowed, and if plaintiff will remit that sum within fifteen days, the judgment will be affirmed, with cost of appeal against the plaintiff; otherwise, it will be reversed and the cause remanded.
