Missouri Valley Cut Stone Works v. Brown

50 Mo. App. 407 | Mo. Ct. App. | 1892

Ellison, J.

— It is sought to charge the property of' defendant Douglass with a mechanics’ lien for material, furnished in the construction of a stone retaining wall ; such wall operating as a fence on the front line of' defendant’s residence property; and for material furnished also for the construction of a stone driveway from the street up to the side of the residence. The-material was furnished to a contractor to whom defendant Douglass paid the full price of the work, but such contractor failed to pay plaintiff. Judgment was for plaintiff below and defendant Douglass appeals, contending that under the faets of the case plaintiff is not entitled to a lien. The faets necessary to state for an understanding of our decision are, that Douglass had built and had, substantially, completed his residence-when he let the contract for the Avail and driveway. The letting of the wall and driveway was in separate-contracts, one written and the other verbal, and were entered into at different times, bnt neither of them were connected with any contracts for the erection of' the residence, nor was the contractor in any way connected with the building of the residence.

Left to my own opinion, uninfluenced by what has-been said by the courts, I would construe our statute,' in the respect here involved, more in keeping with its letter, and what I believe to be its meaning. It has undoubtedly been construed under the influence of decisions from other states which have statutes unlike ours, and which ought, therefore, to have little weight. For instance, it is said in Collins v. Mott, 45 Mo. 100, that the word ‘ ‘buildings” and “improvements,” as used in the statute, are synonymous, and that the lien should only extend to the “buildings and improvements upon them,” notwithstanding the statute then and now speaks of buildings, erections, “or other improvements.” R. S. 1889, secs. 6706, 6708. Thus seeming clearly to distinguish between a building and an improvement. And decisions are frequent where liens are allowed for improvements which were no part of a building. Henry v. Plitt, 84 Mo. 287; McDermott v. Claas, 104 Mo. 214. Each of these latter cases allow liens for sidewalks, for the singular reason that they were provided for at the same time and in the same contract with the building. If the statute does not provide for a lien for a sidewalk, it is difficult to see how the contract of the parties can create a statutory lien. If the material is not lienable, how can it become so, simply by being provided for at the same time with material which is lienable? In Pennsylvania, under a statute providing a lien for work done on or “about” a building, a lien was sustained for a sidewalk. And the question of entirety of contract was properly discussed in that case, not as determining the lienable quality of material, but as to when the statute of limitations began to run. Yearsley v. Flanigan, 22 Pa. St. 489. In New York, sidewalk material was declared to be lienable on the ground that the statute included “appurtenances.’’ Kenny v. Apgar, 93 N. Y. 539. Before the statute included such word, a lien for a sidewalk could not be maintained in that state. McDermott v. Palmer, 4 Seld. 383. In Illinois, under a statute giving a lien to him who should “furnish any labor or materials * * * in the building, altering, repairing or ornamenting any house or other building or appurtenance thereto on such lot;” it was held, notwithstanding the words, “appurtenance thereto on such lot,” that there was no lien for curbing, grading and paving the street. Smith v. Kennedy, 89 Ill. 485. In Indiana, under a statute providing a lien for material furnished for the construction or repair of any building, material for a sidewalk was held not lienable. Knaube v. Kerchner, 39 Ind. 217. And in Iowa, under a statute identical in this respect with ours, it was pointedly decided that a lien for a sidewalk could not be had. Coenen v. Staub, 74 Iowa, 32. If in any of the states where the courts have sustained such liens, the peculiar statute of such state had not influenced them, it is altogether probable that the decision would have been against the lien. That it ought not to be lienable results from the simple fact that such lien springs from the statute, and where the statute, liberally construed, does not provide for it, it has no foundation. Our statute, section 6705, reads that the lien “shall be upon such building, erection or improvements, and the lot or land upon which the same are situated.” A sidewalk is not situated upon the lot. Such walk being a way might well enough, perhaps, be called an appurtenance, and, where such word is used in the statute, might properly be held lienable.

On the other hand, fences not only usually surround buildings, but they fall within the terms of our statute,'being the “other improvements” contemplated by the statute, sections 6705, 6706, and being “situated” upon the lot as required by the statute. In seeking to justify the statement that the words, “or other improvements,” only refer to a building, or improvements upon a building, it is useless to refer to jurisdictions which have not a statute similar, in this respect, to ours. Material for a fence, being, therefore, within the terms of the statute, ought properly to be held lienable without regard to its being contracted for in the same contract at the same time with the house. And a sidewalk, being without the terms of the statute, ought not to be held lienable, although contracted for with the house.

It is not intended to commit us to a decision of any of the questions referred to above. But we do hold, under the cases of Henry v. Plitt, 84 Mo. 237, and McDermott v. Claas, 104 Mo. 14, that plaintiff cannot maintain a lien for the reason as before stated, that the contracts for the fence and driveway were in no way connected with the erection of the building, or any of the contracts for its erection. As we understand and interpret those cases in connection with Collins v. Mott, 45 Mo. 100, improvements other than a building, or upon a building, are non-lienable, unless they have been constructed at the same time under “one entire contract.” This must be our holding until some further light is thrown upon the subject by the supreme court.

II. Plaintiff makes the point that no formal assignment of errors was made by the appellant. Under our recent statute, this is not necessary.

The judgment is reversed and cause remanded with directions to disallow the lien.

All concur.