26 Mo. App. 199 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This is an action, by a material man, against a contractor to recover a balance due for materials furnished, and against the owner to enforce a mechanic’s lien against the premises hereinafter described. The contractor, although duly served, did not defend. There was a general judgment against the contractor in the trial court for $767.94, being the exact amount claimed; and, also, judgment subjecting lots 19 and 20, of a certain block, to the lien of the judgment. The latter part of the judgment was so modified, by voluntary remittitur, as to subject lot 19 only to the plaintiff ’s lien. Prom this judgment the defendant owner appeals.
The errors assigned are, that the lien is void under the conceded facts, and the judgment against the property is erroneous as a matter of law; that there is no evidence that the owner was served with notice of the plaintiff’s claim of lien, ten days prior to the filing of the lien; that the court gave illegal instructions for the
The plaintiff is the surviving, partner of Fathman & Miller. The testimony tends to 'show that the firm entered into a contract with the defendant, Hoffman, who was a contractor with the owner, to furnish certain framed lumber, and other mill material, toward the erection of the defendant owner’s house, and that such material entered into the construction of the building, and was reasonably worth the prices charged in the plaintiff5s account. The contract' price for the lumber was six hundred and seventy dollars, but the amount was swelled by a number of- extras to $767.94. The account filed does not separate the items furnished under the special contract from those furnished upon order as extra work.
The petition states that Fathman died December 14, 1885, and this statement the record admits to be true, although the plaintiff states that he did not die until December 16. It is conceded that some of the items, included in the account, were delivered after Fathman’s death, and consisted mostly of extras. As to the amount of these items the- testimony is not very clear, owing to the fact that the items in the account are not separately dated, and that the omission is not supplied by testimony, and that there is some conflict between the allegations of the petition, which are admitted to be true, and the plaintiff’s own testimony as to the date of Fathman’s death.
The account is made out in the name of Miller & Fathman, and the lien was filed April 15, 1886, and more than four months after Fathman’s death, if the date of his death is December 14, 1885, as stated in the petition. The property sought to be charged with the lien consists of lots 19 and 20, of block 7, and the testimony concedes that the block was platted and recorded long before the defendant owner’s contract with Hoffman was entered into, and that the exact boundaries of
The facts, touching notice to the owner of the plaintiff’s claim and intention to file a lien, were shown to be-as follows: On April 2, 1886, a written notice of the claim was left at the owner’s residence.- This notice was in compliance with the statute as to form, and was signed thus : “ Miller & Fathman, by Julian Laughlin, their attorney.” Miller, at that time, as surviving partner, was administering the partnership estate of Fathman & Miller, and Julian Laughlin ivas acting as his attorney. No personal service of this notice was made on the owner on April 2, but, subsequently, and prior to' April 6, she admitted that she had received it on the day when it was left at the house.
The defendant, upon trial, objected to the introduction of the notice in evidence, as well as to the introduction of the lien paper. The court overruled" these objections, of which ruling the defendant complains as erroneous.
We think the notice was formally sufficient. The claimant’s name was signed to it by authority, and it advised the defendant from whom it came, and who held the claim. In all these respects it is essentially different from the notice condemned in Schulenburg v. Bascom (38 Mo. 191). The only object of the notice is to secure-the owner at least ten days’ time to investigate the merits of the claim before he decides whether he will pay it, or permit his property to be subjected to a lien. And while due notice from a sub-contractor to the owner is essential to the validity of the latter’s lien claim, the mode of service is immaterial, provided it sufficiently appears that the owner did,- in fact, receive the notice at least ten days prior to the time when the lien was filed. Nor do we consider the fact essential, that no personal service was made on the owner of this notice, at least
The latter view, is, however, equally erroneous. First, because neither the notice nor the lien account, mention Miller as the claimant, but the claimants mentioned are Fathman & Miller, and thus, in that view,
The court, also, committed error in submitting the question to the jury, whether the plaintiff was entitled to' a lien on both lots, nineteen and twenty. The error became harmless by the subsequent remittitur as to lot twenty. And we make the statement in view of a retrial of the cause. It is conceded that the entire struc-! ture stands on lot nineteen. The amendment of 1877, now section 3195, of the Revised Statutes, is the only provision of our laws, which enables a contractor, in certain cases therein mentioned, to charge several contiguous lots with one entire lien claim. The law was thus modified to avoid the inconvenience and injustice arising from a state of facts, such as are discussed in Fitzpatrick v. Thomas (61 Mo. 512). In a case like the present, the lien claim can cover only the lot on which the structure stands. The word lot in the law is to be taken in its usual, well defined sense when applied to real 'estate within a sub-divided city block. It means the fractional part of a block, commonly known as a lot, limited by fixed boundaries on the recorded plat.
Under the rule established in Oster v. Rabeneau (46 Mo. 595), the plaintiff’s lien was not necessarily avoided, because excessive as to the quantity of land sought to be subjected to the claim, but the safer course for the plaintiff to pursue is to dismiss his claim as to lot twenty, before a re-trial of the cause.
The case calls for the following additional observa- ’ tions.:
I. If the plaintiff adduces substantial, evidence, that part of the items included in the special contract of Fathman & Miller with Hoffman, were furnished within four months next preceding April 15, 1886, the court'
The distinction between items covered by the special contract, and those not thus covered is obvious. As to the former, the death of Pathman could not terminate the obligations of Miller. The contract being entire, he was bound to complete it, and, when completed, it enured to the benefit of the firm. As to the latter, the death of Pathman determined Miller’s authority. He was under no obligation to fill orders, though received during the life of the firm, and had no power to use firm property for that purpose on the firm account. If he used it on his individual account, as, in contemplation of law, he is conclusively presumed to have used it, he could not tack the two contracts together so as to make them form one entire lien claim.
II.' The testimony of the deputy sheriff, that the defendant admitted to have received a written notice of the plaintiff’s lien claim at least ten days before the filing of the account, is competent evidence, but the sheriff’s return, stating personal service on April 2, under the facts sworn tó by the deputy, is clearly untrue, and the plaintiff should not again attempt to prove the fact by this discredited return.
The judgment is reversed and the cause remanded.