124 Ky. 251 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
Mary E. Mivelaz made a contract with. R. A. Barnes to bnild for iter a lions© and granitoid sidewalk in
It is insisted for appellant that the statement filed by Johnson in the county clerk’s office is not sufficient to give him a lien on the property. Section 2468, Ky. St. 1903, is as follows: “The liens mentioned in the preceding sections shall be dissolved unless the claimant, within six months after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the county court of the county in which such building or improvement is situated, a statement of the amount due him, with all just credits and set-offs known to him, together with a description of the property intended to be covered by the lien, sufficiently accurate to identify it, and the name of the owner, if known, and whether the materials were furnished or the labor performed, by contract with the owner, or with a contractor or subcontractor, which shall .be subscribed and sworn to by the person claiming the lien, or by some one in his behalf.
The material part of the statement filed by Johnson, in so far as it is claimed to be defective, is as follows: “Affiant, A. W. Johnson, says that he is a mechanic in the business of making cement sidewalks, and that during March, 1903, he furnished the material and the labor to lay a granitoid sidewalk on the following described lotsdn the City of Louisville under contract with R. A. Barnes, and as a contractor
The property of Mrs. Mlivelaz was in fact situated 637 1-2 feet south of P street, extending thence southwardly along the east line of Third street 26 feet and 4 inches, and running back at right angles to the street. It will be observed that in the statement the property is described as beginning at a point 647 1-2 feet south of P' street, and extending from this point 26 feet and 4 inches; so that the statement in fact included 16 feet and 4 inches of the lot, and did not include 10 feet of it, but included 10 feet of other property. It will also be observed that the name of the owner of the property is given in the statement as “Mary Mulvin,” and not as “Mary Mivelaz.” In all other respects the statement complies with the statute.' How the mistake occurred in the name of the owner is not explained by the proof; nor does it seem clear how “Mivelaz” could have- been corrupted into ‘ ‘ Mulvin. ’ ’ -Mrs. Mivelaz has been in no way prejudiced by the mistake. She had paid Barnes before the statement was filed. No third person is interested in any way. The mistake in the description of the lot, in writing “6471-2” for “6371-2,” does not seem to us sufficient to defeat the lien. The statement shows it was a lien for building a sidewalk in front of a lot on the east side of Third street, hav
It is a matter of common knowledge that foreign names are often pronounced very differently from the way they are spelled, and it is often difficult to spell the name from the way it is pronounced. The mechanics who do work as sub-contractors are not as a rule, expert spellers, and should not be held to a high standard in the spelling of proper names. The statute only requires the name of the owner to be given, if known. The purpose of the statute is to require only of the claimant a statement of the name, if he knows it; and he does not lose his claim where it turns out that he was mistaken in the name. lie is no more affected by a mistake in the name than he would be if he gave as the owner the person who was reputed to own the property, and it should turn out that.another person owned it. In 20 Am. & Eng. Ency. of Law, p. 424, the rule is thus stated: “Where the statute only requires the name to be given, if known, if the name is not known, the statement is sufficient, although it is silent upon the subject.” The courts have shown great reluctance to ‘set aside mechanics’ liens'merely for loose descriptions,-'for the reason that the síátutes are désighed for the aid of the mechanics and that they usually prepáre "their
This is not a case where the description indicates a different property from that intended to be subjected. It is simply a case where part of the property sought to be subjected is not included in the description, and where the value of the part in fact included is largely greater than the claim. In 20 Am. & Eng. Ency. of Law, p, 522, the rule is thus stated: “The lien is not invalidated merely because it describes more land than the lien can lawfully cover. Nor is it defeated by a failure of-the description to cover as much property as it might have covered. Failure to describe properly a portion of the premises or improvements upon which the lien is claimed will not invalidate the lien as to the- portion correctly described.” We. therefore conclude that the chancellor properly sustained the lien.
The fact that Johnson had accepted a note from Barnes did not affect his rights. Mivelaz v. Genovely (Ky.), 89 S. W. 109, 28 Ky. Law Rep, 203, 121 Ky. 235. The circuit court properly sustained the demurrer to the paragraph of the answer pleading an estoppel, for the reason that it was not averred that any representation was made to Mrs. MÜvelaz, or that she was induced by any representation to follow the course that she did. On the whole evidence we do not see that the chancellor made any error in refusing to allow the credits claimed.
Judgment affirmed.