Putnam v. Ross

46 Mo. 337 | Mo. | 1870

Cukrier, Judge,

delivered the opinion of the court.

This suit was brought to enforce a mechanic’s lien, for material furnished by the plaintiffs to the original contractor. In giving the owners notice of their claim, the plaintiffs stated the indebtedness to be -duefrom “Ross & Shane, contractors.” It turned out that the claim was against Boss alone,'his former partner, Shane, having ho interest in the transaction. The defendants insist that the error in the notice is fatal to the plaintiffs’ lien. Whether or not it is so, is the question for determination.

The defendants’ view seems to be founded upon the theory that the mechanics’ lien enactment is in derogation of the common law, and that its provisions are therefore to be construed with a rigid strictness against those' who seek to avail themselves of its intended benefits. There may be decisions which lend support to that theory, but the better opinion is that the provisions of the mechanics’ lien law should be interpreted so as to carry out the object had in view by the Legislature in enacting it, namely: the security of the classes- of persons named in the act, upon its provisions being in good faith substantially complied with on their part. It has become the settled policy of this State, as in most if not all the States, to secure mechanics and material-men by giving them a lien upon the property they have contributed to improve or create. The law ifej¡el£ has grown up from small beginnings to its present unquestioned importance. And the whole course of legislation on the subject shows that it has been the intention of the Legislature to avoid unfriendly strictness and mere technicality.

, The spirit and purpose of the law is to do substantial justice to all parties who may be affected by its provisions. It has therefore been enacted (Gen. Stat. 1865, p. 911, § 19) that when a party who deals with the principal contractor, and not directly with the owner, wishes to avail himself of the benefits of the enactment, he shall notify the owner, ten daysTn advance of filing the lien, of his purpose to do so, stating in the notice the amount of his claim, and “from whom it is due.” The plaintiffs sought to comply with that requirement, but failed to state with precision who was their debtor, giving the name of a business firm, instead of the name of the party who had been the senior member of that firm. He gave the name of his real debtor, but erroneously coupled with it the name of a third party who was not liable. Were the defendants misled to their injury by this mistake? If so, they ought not to suffer in conse-scquenee of the plaintiffs’ inadvertence. But there is no probability that they were harmed by the error. At all events, it is not to be so presumed in the absence of evidence. If the error wrought the defendants any harm, it can not be difficult for them to show it; but they aver nothing and prove nothing in that direction. Their objections rest on purely technical 'and over-critical grounds.

Substantially the same point was raised in Tibbetts v. Moore, 23 Cal. 208, where it was held that a notice which stated that the materials were furnished to “Moore & Co.” was sufficient, although the materials were in fact furnished to Moore alone. So, in Hauptman v. Catlin, 3 E. D. Smith, 666, it was held'that where a notice stated a claim against A. and B., his wife, upon a contract with A. alone, and the contract was in fact made with the husband, acting merely as# the agent of his wife, the notice was nevertheless good.

I am of the opinion that the notice under consideration should have been received in evidence, and consequently that the judgment of the District Court, reversing that of the Common Pleas, ought to be affirmed.

Judge Bliss concurs ; Judge Wagner not sitting.