Neal v. Smith, 49 Mo. App. 328

Neal v. Smith

49 Mo. App. 328 | Mo. Ct. App. | 1892

Thompson, J.

This action is brought by a principal contractor to recover $900, the contract price for the building of a house under a contract made between the plaintiff and the- defendant, A. L. Smith, who was the owner of the ground upon which the house was built, joining as defendant H. Donohue, a subsequent purchaser from Smith, and E. A. Hamilton, who is trustee in a deed of trust placed upon the property. At the trial the mechanic’s hen paper was offered in *330evidence by the plaintiff, bnt was rejected by the court,, and thereafter judgment was given against the validity of the lien, but also in favor of the plaintiff against the defendant Smith for the sum for which the action was-brought, with interest and costs. To reverse this judgment and secure the establishment of the mechanic’s-lien, plaintiff prosecutes this appeal.

The plaintiff gave evidence tending to show that he made a contract with the defendant, A. L. Smith, then the owner of certain described premises, to erect a frame-house of certain dimensions upon the premises for the-round sum of $900, and that the contract was not reduced to writing. He then offered in evidence a-mechanic’s lien paper, in which the account was stated, as follows:

A. L. Smith, To James A. Neal, Dr., May 14, 1890. To building bouse - above described, as per above contract....................... $900'

The circuit court committed no error in rejecting the mechanic’s lien paper based upon this single item of account. The case falls entirely within the decision of the supreme court in Rude v. Mitchell, 97 Mo. 365, where it was held that, where the account, filed as the-basis of a mechanic’s lien in a case between the original contractor and the owner, states the whole contract price of the building in one item, this is not the “just and true account” required by the statute, but is worthless as a basis of a lien, and that, where the builder files such an account, he acquires no lien. In that case, outside of items for extras and alterations, the account was as follows:

1882, December 1. Dor alterations and additions, to buildings numbers 210 and 212 N. Third street, as per plan and specifications.................................... $22,287 00-

In Smith v. Haley, 41 Mo. App. 611, 620, 621, we followed and applied the decision in the last-named case, where the first item • of the account was simply *331this: “To building complete, one two-story house with mock-mansard roof, situated at number 2819 Sheridan avenue, for contract price, $3,990.”

It is impossible to distinguish these two cases from the case now under consideration. We add a thought, called up by the printed argument submitted for the appellant, which is that the goodness of the mechanics’ lien cannot on any conception be made to depend upon the question, whether the action against the owner is brought upon a contract itself ' or upon a quantum meruit.

The judgment of the circuit court will accordingly be affirmed. It is so ordered.

All the judges concur.