O'Shea v. O'Shea

91 Mo. App. 221 | Mo. Ct. App. | 1901

BLAND, P. J.

— I. It is not everything that may be included in a building for which the statute gives a mechanic’s lien. It is necessary, therefore, that the character of the work or material furnished be stated in the lien account, or that it be somewhere found in the papers filed with the intention of charging the property with the lien. Sec. 4207, R. S. 1899; Rude v. Mitchell, 97 Mo. 365; Cahill, Collins & Co. v. Orphan School, 63 Mo. App. 28.

Neither the account filed nor the declaration for the lien gives any intimation of the purpose of the excavating work alleged to have been done and for this reason are insufficient. But the lien declaration gives notice that the notice of the intention to file a lien is attached to and made a part of the declaration, and this notice was attached to and filed with the lien and describes the character of the work and where done and supplies the omission to characterize the work in the lien account. The mechanic’s lien statute is a remedial one and should be liberally construed, is the settled law of this State. Mitchell Planing Co. v. Allison, 138 Mo. 50; Walden v. Robertson, 120 Mo. l. c. 43; Putnam v. Ross, 46 Mo. 337; De Witt v. Smith, 63 Mo. 263; Bruns v. Braun, 35 Mo. App. l. c. 343; Steininger v. Raeinan, 28 Mo. App. 594. To correctly apply this rule of construction to the case in hand, we think that the notice should be held to have formed a part of the lien paper. It was evidently the intention of the plaintiff to make it a part of his declaration for a lien, for he calls attention to the fact in his declaration that the notice had been given and that it was attached to, and made a part of his declaration for a lien. Anyone who should read the declaration would have his attention called to the notice as forming a part of the declaration, and finding the notice attached to the declaration, if he desired to be fully informed of all the facts upon which plaintiff relied to establish his lien, would read the notice from which he 'would learn of the character of the work and that it wfas lienable. We think the notice should be treated as a part of the declaration for the lien. If this is done then the declaration contains every statement of facts essential to plaintiff’s right to a lien.

ii. Plaintiff’s abstract of the evidence does not purport to set out any of the evidence but states only that the evidence tended to prove the following facts, to-wit: the character of the work, the contract between Zeller & Walker of the one part and Joseph O’Shea of the other, and the contract between Joseph O’Shea and plaintiff, and that plaintiff did the work, its value and the balance due. Defendants in their abstract of the evidence; which is not objected to by the plaintiff and therefore stands admitted to be correct (section 813, R. S. 1899), set forth that plaintiff testified that he did not do the work himself but hired men to do it, and that he was engaged by defendant Joseph O’Shea, his brother, at a stipulated wage of three dollars per day, and that he employed him as a foreman. We have, therefore, for the plaintiff, the general statement that the evidence tended to prove his case, and we have for defendants the specific evidence from the plaintiff and from his witness that plaintiff was employed by his brother, Joseph O’Shea, as a foreman at three dollars per day.

The account sued on and set out in the declaration for a lien is for team work. Evidence that Patrick O’Shea was hired by Joseph O’Shea at three dollars per day to superintend team work does not prove or tend to prove that Patrick O’Shea excavated a cellar under a contract made with Joseph. There is nothing in either of the abstracts to indicate that Edward S. Robert was the owner of the land described in the petition and lien account or that Zeller & Walker at any time contracted with Robert for the erection of a dwelling-house, as alleged. There was, therefore, a failure of proof of facts, essential to entitle plaintiff to enforce his mechanic’s lien and the error in excluding the lien paper was not prejudicial, as plaintiff by his evidence, failed to prove every other fact necessary to establish his right to a mechanic’s, lien on the property described.

The judgment is affirmed.

Judges' Barclay and Goode concur.