Heamann v. Porter, 35 Mo. 137

Heamann v. Porter

35 Mo. 137 | Mo. | 1864

Dryden, Judge,

delivered the opinion of the court.

This was a suit under the Mechanics’ Lien Law, specially applicable to St. Louis county, (Session Laws of 1857, p. 668,) to enforce a lien against a house and lot in the city of St. Louis, for brick sold and delivered by the respondent to the defendant Busch, as sub-contractor, and used by him in the construction of the house. The amount claimed was $727. 14, being a balance after deducting a credit of $47.06. The petition is in the usual form, containing the averments, among others, that the respondent had in proper time filed with the clerk of the St. Louis Land Court “a just and true account of the said demand due him, after all just credits had been given,” verified as required; and that more than ten days before the filing of the account he had given the owners of the building notice of his claim. There was nothing in the petition showing the respondent had given the owners of the building notice of his intention to furnish the brick prior to furnishing the same.

Busch, the sub-contractor, made default; Pond, the contractor, and Camden and Case, the owners, answered separately. The owners aver payment of the contract price to Pond, and he full payment to Busch, before notice of the plaintiff’s claim. The following is all that the answers contain touching the integrity of the account filed and the credits given, viz.: “This defendant (Pond) denies that the plaintiff has set forth in his petition a true account of the brick furnished to said Busch for said houses, and that he has given in said account all just credits for money paid him by said Busch.” ****** “ This defendant avers that he is informed and believes, and so charges, that said Busch has paid said plaintiff the sum of two hundred and fifty-seven dollars, which ought to be credited on said account, instead of the sum of $47.06 as credited on said account, so set forth in said petition.”

On the trial, evidence was introduced tending to show, as well that the account overstated the number of brick fur*141nished, as that partial payments bad been made prior to filing the lien, not credited on the account. The verdict was for the respondent for $628.94, and judgment accordingly, and for the sale of the property charged with the lien in default of payment by Busch, the debtor. The defendants who answered have brought the case here by appeal.

The appellants asked the Land Court to instruct the jury, that if the account filed for a lien was for a sum materially larger than was justly due, and was so filed with the knowledge of the plaintiff that the sum claimed was thus excessive, the lien for the amount actually due was thereby made void; and the refusal of the court so to declare the law, is urged as a ground for the reversal of the judgment.

1. The court committed no error in the refusal of the instruction. If the Legislature had intended the right of the lienholder should depend upon the question of his good faith in the statement of his demand, such intention would not have been left to 'mere construction, but would have been expressed in plain words. The lien is the result of the performance oflabor, or of furnishing materials (§ 1, p. 668, Sess. Acts 1857), and there is nothing in the law countenancing the proposition that the right thus given is avoided or divested by reason of the sum claimed being excessive, whether the excess be great or small, or whether the claim be made with knowledge or in ignorance of the true amount due.

2. The provisions of the 2d sec. of the general law (R. 0. 1855, p. 1066) requiring a sub-contractor wishing to avail himself of the benefits of the act, to give notice to the owner prior to his doing work or furnishing materials, are inconsistent with the provisions of the act of 1857 specially applicable to St. Louis county, and are therefore not in force in that county. (Sec. 20, Acts of 1857, p. 671.) The Act of 1857 requires no prior notice from the sub-contractor of his intention to perform work or furnish materials, and the petition in this case is therefore not subject to objection for want of the averment of such previous notice.

Let the judgment be affirmed; the other judges concurring.