57 Mo. 521 | Mo. | 1874
delivered the opinion of the court.
This was an action to enforce a mechanic’s lien, brought by plaintiff against defendants as the trustees of the colored Baptist Church, in the city of Mexico, aud as original contractors, for the material used in the erection of a house of worship.
The petition contains the usual allegations, and the answer-traverses those of any particular importance. The evidence adduced, was conflicting, and the trial resulted in a verdict for the plaintiff, and a judgment enforcing the lien as prayed for.
It is impossible to form any opinion as to the correctness of the instructions given on behalf of plaintiff, as to the force and effect of the deed made to defendants, as it has not been preserved in the record. With the exception to bepresent.lv noticed, the instructions on the part of plaintiff as well as defendants, as to whether the latter either directly or through those whose acts they expressly authorized, or subsequently ratified, purchased the materials furnished in the erection of the church building, were unobjectionable. But the sixth instruction given on the part of plaintiff, was erroneous. It was as follows: “The court further instructs the jury that if they find the account as stated in the petition, or any part of it, due plaintiff, then plaintiff has alien on said building and lot for the amount found due.”
Certain defects have been adverted to in the petition as 'k reason why the motion in arrest should have prevailed; but it is thought that the defendants by pleading to the merits, waived any objection which they otherwise might have successfully urged against the formal sufficiency of the petition.
The only material error observed, is the one already noticed, and for this the judgment must be reversed, and the cause remanded ;