Morley v. Carlson

27 Mo. App. 5 | Mo. Ct. App. | 1887

Hall, J.

This was an action for money paid by plaintiff, the original contractor for the erection of a certain building, in satisfaction of certain claims held by various parties for materials furnished and labor performed by them in the construction of the building under-contract with defendant, .a sub-contractor under the plaintiff. The money so paid by plaintiff was in excess of the contract price agreed upon by plaintiff and defendant for the work done by the latter.

The money was paid by plaintiff after notice was served by the parties, to whom it was paid, on the owner of the building, of their intention to file liens on the building. The evidence did not show that any liens had been filed by said parties with the clerk of the circuit court. Said parties had brought no suits to enforce their liens. The money was paid by the plaintiff, as the jury found, to prevent mechanics’ liens from being filed on the building.

The claims paid by the plaintiff were paid by him voluntarily, and he cannot recover therefor, unless it was his duty as the original contractor for the erection of the building to have made said payments. In my opinion it was not the duty of the plaintiff to pay claims against his sub-contractors until liens for those claims had been' prosecuted to judgment. The parties holding the claims might have never filed liens theréfor or taken the steps necessary, under the statute, to entitle them to maintain actions to enforce said liens, or said parties might never have instituted such actions, or, if such actions had been instituted, the parties might not have succeeded in obtaining judgments on the liens. In any of which cases the plaintiff would not have been bound to pay the claims. It was the duty of the plaintiff to pay liens on the property, and not claims in whose favor there were no liens, but simply a right asserted to liens.

But we are all agreed that the plaintiff ’ s duty, as to the payment of the said claims, cannot be extended beyond the requirements of section 3191, Revised Statutes, and that, under that statute, no duty rested upon the plaintiff to pay the claims until liens therefor had been filed and actions had been brought on said liens. In this case no liens had been filed, and no actions had been brought. The payments were, therefore, voluntarily made by the plaintiff, and he had no cause of action.

Judgment reversed and case dismissed.

All concur.