41 Mo. App. 220 | Mo. Ct. App. | 1890
Plaintiff, a dealer in wooden mantels, gratis, tiles, etc., on the first day of September, 1887, entered into an agreement with defendant Sturtevant, the owner of a certain block of ground and the building in process of construction thereon, situated in Woodland Place, Kansas City, to furnish the mantels and grates for said buildings, and to put the same in their places when said building should be ready for the same. At the time of the making of this agreement plaintiff did not have on hand the mantels of the kind which he had agreed to furnish defendant Sturtevant, but had to procure the same from the factory; that afterwards between the latter part of December, 1887, and the seventh of January following, plaintiff placed said mantels and grates id the said building according to the said agreement. Sturtevant having failed to pay the price agreed upon or any part thereof for the said mantels and grates, the plaintiff on the twenty-third of April, 1888, filed with the proper circuit clerk of Jackson county a verified statement of his account of the work and labor done, and materials furnished by him under his contract with Sturtevant, for the purpose of availing himself of the provisions of the statute relating to mechanics’ liens. In May, 1887, one Deitrick, by proper deed, conveyed said block of ground to Sturtevant and Evans, who, on the thirty-first day of the same month, gave two deeds of trust thereon, respectively to Ettien as trustee for the Lombard Investment Company, and to Pearson, trustee for Weston, Deatherage & White. On August 12, 1887, Evans by deed conveyed said lot in said block to defendant Sturtevant. Sturtevant conveyed to Snyder on September 29, 1887.
I. The appealing defendants contend: First. That an original contractor cannot maintain a lien, except under contract with the person who was the owner at the time Tie begem to furnish his materials; and, second, that it is his duty to examine the records and to see when he begins to furnish his materials that his contract is with the owner at that time. As to the first branch of defendants’ contention it is to be observed that the statute, Revised Statutes, section 8172, provides that any mechanic or other person who shall do or perform any work or labor upon, or furnish any materials * * * for any building * * * under and by virtue of any contract with the owner or proprietor thereof * * * upon complying with the provisions of this article shall have for his work or materials a lien upon such building and the lot upon which the same is situated.
The entire statute relating to the liens of mechanics and materialmen must be liberally construed so as' to effectuate the benign intent of the legislature in its enactment. It is a remedial statute, and must not be construed with unfriendly strictness. The course of decisions is quite .uniform in the states, that the lien does not commence until the performance of the work or labor, or the furnishing of the materials. Hydraulic
II. The vital question in the case seems to be whether the plaintiff’s lien on the ground and building thereon is valid as against the mortgages given to the Lombard Investment Company and to Deatherage, Weston & White, before the commencement of the building. The question is, therefore, one of priority between the mortgage lienors, or those claiming under them, and the materialman, who was an original contractor. The relative rights of these parties must be determined in the light of the statute, Revised Statutes, section 3174, which provides that the lien for materials or work shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or incumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time • thereafter. It would seem that the liens of the materialman are
IY. There is nothing in the evidence in the case which justifies the assumption that the plaintiff was a mere subcontractor under Sturtevant, who, after his sale of the property to Snyder, under a contract for that purpose with Snyder, completed the building which he had commenced as owner. In view of the fact that the circuit court, by its judgment, gave plaintiff a lien on the block of ground, as well as the structures thereon, we must reverse the judgment. It is ordered that the judgment be reversed, and the cause remanded with instruction to the circuit court to enter judgment in favor of plaintiff and against defendant Sturtevant for the amount of his claim, with six per cent, thereon from the seventh day of January, 1888, with a lien clause against the building (but not the lot) described in plaintiff’s petition, subjecting the said building to the payment of said judgment.