56 Mo. 487 | Mo. | 1874
delivered the opinion of the court.
This was an action under the mechanics’ lien law, brought by the plaintiffs, as lumber men, for a balance due for lumber furnished the defendant, George W. Berry, contractor, under a contract by him with one Anna Griswald and her husband, L. M. Griswald, for building a row'of eight houses in St. Louis. During the progress of the buildings the defendant, Humphreys, purchased the property under a deed of trust, which had been made by the Griswalds to secure a debt to one Maria E. Bates.
The petition is in the usual form. The defendant Berry made no defense, and judgment by default was rendered against him as contractor. The defendaiit, Humphreys, as owner of the property, filed an answer traversing all the material allegations of the petition. The answer then proceeds
In testimony, whereof we have hereunto set our hands and seals.
Geo. W. Berry, [seal.]
L. A. Hartman, [seal.]
Wm. Graham. [seal.]
And defendant avers, that, upon the delivery of said bond, said Bates did loan the money specified in said agreement; that this defendant thereafter purchased said property and buildings of said Griswalds’ trustee in an unfinished condidition, and faithfully carried out the_conditions of said contract, with defendant Berry, alluded to in said agreement on the part of said Griswalds to be performed, on the faith of such bond and undertaking of plaintiffs herein, that said buildings would be delivered free from all liens; and said bond and undertaking aforesaid was then and there by said Bates duly assigned to this defendant; and said defendant, relying on said covenant and agreement of said plaintiffs in said bond contained, that said Berry would deliver said houses to said Griswalds when completed free from all mechanics’ liens and other indebtedness of whatever character, then and there paid to said Griswalds’ trustee the purchase money for said property, and paid said Berry in full for completing said houses, and defendant says that by means of said acts of plaintiffs he was led to believe that plaintiffs would faithfully carry out their bonds and agreements, and protect said buildings from all liens, much less file one themselves; and he says
The plaintiffs demurred to the new matter as above set forth in the answer of defendant Humphreys, upon the alleged ground that it did not constitute a defense to the action. This demurrer was sustained. The parties submitted the case for trial to the court, and the plaintiffs gave evidence conducing to prove their account contained in the lien, and that the lumber was supplied to Berry under a contract with him as original contractor with the Gfriswalds to build the houses referred to; that the items of 20th of February, 1872, were gotten after the defendant Humphreys had become the owner. But those items were sold and delivered to defendant Berry on that day, and were used on the buildings under the same running account as the other materials. The defendant Humphreys objected, as the bill of exceptions shows, to all evidence in regard to matters occurring prior to October, 1871. This objection was overruled, and defendant excepted. He also excepted to the introduction of the lien in evidence, upon the ground that the last item in the account was delivered and sold more than four months prior to'the date of filing the lien. The date of filing the lien was the 19th of June, 1872.
The defendant offered in evidence the deed of trust, and the deed by the trustee to him as purchaser of the premises, and the bond which had been assigned to him by Bates; all of which were objected to and ruled out, and the defendant excepted.
1. The main point raised by the record is, whether the demurrer to the new matter set up in the defendant’s answer, was properly sustained. From the face and tenor of the bond given to Bates, which is copied in the answer, it is manifest that its only purpose was to secure her in the payment of the money loaned to Griswalds, for which the deed of trust was executed. The object was, that the deed of trust might not be swept away by liens filed under the mechanics’ lien law. There is no allegation in the answer, that Bates was injured, or if injured to what extent. The bond itself would not operate as a bar or estoppel against filing liens. If Bates lost her money, or any part thereof, by reason of such liens being filed, the damage so sustained might have been set up as a counter-claim, or if her lien was about to be enforced by the sureties in the bond, which endangered her debt, she might perhaps enjoin the collection till her debt was satisfied. Under this view, in my judgment, there was no error in sustaining-the demurrer. And for the same reason the court properly excluded as .evidence, the -bond assigned to him by Bates, and the deeds under which the defendant became the owner of the property. As the demurrer had been sustained, there was nothing in the answer to justify the admission of such evidence; besides there was no offer to prove that Bates had suffered any damage or loss in the collection of her debt.
Judgment affirmed,