6 Mo. App. 413 | Mo. Ct. App. | 1879
delivered the opinion of the court.
Plaintiff sues to establish a mechanic’s lien for lumber furnished to defendants Middendorf and Spieler, original contractors, for erecting a dwelling and other improvements on the contiguous lots belonging to defendant Doris
The appellant contends that no contract for the erections was made with her, through an agent or otherwise. It appeared in testimony that Mr. and Mrs. Schwartz were together when a verbal agreement was made with Middendorf and Spieler for the building of the house and other improvements. In the conversation, which was chiefly between Schwartz and Spieler, Schwartz used expressions which might imply that he was about to build on his own account. He was active in superintending the work as it progressed, and directed numerous alterations, saying that he would pay the additional expenses. He testified that he had acted throughout for himself, and not as agent for his wife. On the other hand, it appeared that Schwartz had bid off the lots at an auction, and caused the conveyance to be made to Mrs. Schwartz. It was admitted that the title was in her at the institution of the suit. When the contract was made, she participated in the conversation and heard all that was said. The plan and price were discussed and agreed upon. Schwartz said that the ground belonged to his wife. Mrs. Schwartz said that the house would belong to her. Schwartz repeated the same thing. Mrs. Schwartz told Spieler not to fear about doing the work, for her husband already had the money to pay for it. Spieler testifies : “In May, 1876, we contracted with the defendants, Doris and William Schwartz, to build a house for them,” etc. While the building was going on, Mrs. Schwartz was frequently about the work, and on one occasion gave directions, along with her husband, for an enlargement of the house. With all this appearing in the record, it is impos
It is urged for the appellant that some of the lumber furnished by the respondent was used in the construction of a sidewalk in front of appellant’s property, and that, under the ruling in Kershaw v. Fitzpatrick, 3 Mo. App. 575, this is fatal to the lien. It does not appear that this objection was brought to the attention of the Circuit Court. The testimony of the witness on this point is so confused, and his English so imperfect, that it is impossible to perceive clearly that the sidewalk referred to was on the public highway and not on the appellant’s lot. In any event, the quantity of lumber used for that purpose was insignificant. Under all the circumstances, we would not feel justified in reversing the judgment for this cause.
The affidavit filed with the lien was in substantial compliance with sect. 5, p. 909, of Wagner’s Statutes. The account sworn to contained the names of the owner and the contractors. It was unnecessary to repeat them in the affidavit.
The judgment of the Circuit Court is affirmed.