62 Mo. App. 569 | Mo. Ct. App. | 1895
Plaintiff was a subcontractor under the defendant Cornice Company and brought this action to enforce a mechanic’s lien against the First Christian church at Columbia, Missouri, with which the Cornice Company was an original contractor. The trial court gave judgment for plaintiff against the defendant, Cornice Company, for the amount, of the account, $810.84, and gave judgment for the enforcement of the lien for the sum of $382.37, that being the amount of money due from the church to the Cornice Company. The court refused to enforce the lien against the church for more than the last mentioned sum. Plaintiff appealed. Neither of the defendants appealed.
As the decision of one point made by the church will determine the ease, it will not be necessary to notice others. It appears that the Cornice Company was the contractor with the church, and that the Cornice Company engaged the plaintiff to furnish the material and put a slate roof on the church building; that the agents of the church paid to the Cornice Company all that was due such company, except the sum aforesaid, for which the lien was adjudged — that sum being held back by the church to await the result of this litigation. It further appears that afterward the Cornice Company made a general assignment for the benefit of creditors, and that the plaintiff’s account here in question, was allowed by the assignee, ■ and a dividend of $124 was afterward paid to the plaintiff by the assignee.
In our opinion, the allowance of the account before the assignee, has the effect to disentitle plaintiff to enforce its lien against the church building, for the reason that the allowance is a judgment into which the account merged and that no account is left upon which to base a lien. That the statute governing mechanics’
Applying the foregoing to the condition in which we find plaintiff, it can not maintain the lien it claims. By obtaining the allowance of the account in the assignee proceedings of the Cornice Company, the plaintiff obtained a judgment on said account, into which the account merged, and no suit could thereafter be maintained on the account against the Cornice Company. If A. obtains judgment against B. on an account, he can not afterward sue B. on the same account. He may again sue B., but the suit would be on the judgment. ..So, therefore, plaintiff ought not to be allowed to sue the Cornice Company on the account, since the account no longer exists. And, there being
But it is insisted by plaintiff that the allowance of the account by the assignee is not a judgment. The rulings of the supreme court and of the St. Louis court of appeals are that such an allowance is a judgment; that the questions involved in the matter become res adjudícala. The “judgment has all the force, effect and conclusive attributes of any other judgment.” Eppright v. Kauffman, 90 Mo. 25. The party obtaining the allowance becomes a judgment creditor. Roan v. Winn, 93 Mo. 503. If he elects that remedy, he is bound by it. Nanson v. Jacob, 93 Mo. 331. “It constitutes a new debt, like any other judgment, and is conclusive against the parties. Kendrick v. Guthrie M. Co., 60 Mo. App. 22.
It may be suggested that the contractor may waive the objection that the account 'had been merged into a judgment. But he can not do this to the prejudice of the owner of the property. The owner is entitled to avail himself of any defense pertaining to the claim sued upon, which goes to' the disestablishment of the lien.
The result is that plaintiff was not entitled to a lien against the church building for any sum. But, as the church is making no complaint as. to the lien allowed by the court, for the limited amount- stated, the judgment will be affirmed.
