55 Mo. 116 | Mo. | 1874
delivered the opinion of the court.
This was an action to enforce a mechanic’s lien. The plain■tiffs furnished lumber to the defendant, Daniel M. Ross, as contractor, to build a house for the defendants Medsker and others, owners of the property.
The defendant Ross, and one Shane, were the contractors, as partners, for building the house. This partnership was dissolved during the time the house was being erected, and the defendant, Ross, took this job to finish on his own account, with the consent of the owners. Part of the lumber was furnished by the plaintiffs to the firm of Ross & Shane, and the remainder to the defendant, Ross, alone, after the dissolution.
The defendants objected, by way of answer, that Shane, one of the original contractors, was not joined as defendant, but did not ask that he should be brought before the court as a party. On the trial the defendants objected to the no
1. The contract by Ross & Shane to build the house was joint and several, and the plaintiffs had the right to sue Ross alone for the whole amount. As they had furnished part of the lumber to Ross & Shane, and the balance to Ross alone, and filed only one lien for the whole amount, they could only maintain one suit for the enforcement of the lien. I do not see how Shane could be joined as defendant, as he was not liable for that part of the lumber furnished to Ross after the dissolution of the partnership. The law requires the original contractor to be made a defendant. But where there are several joined in the contract, one may be sued alone, and so one may be brought before the court in a suit on the lien. If the owners of the property desire the other joint contractors to be made defendants, the court may in its discretion have them brought in as defendants if they are within its jurisdiction. There is nothing in this case to show that Shane ought to have been brought before the court. The doctrines maintained in Horstkotte vs. Menier, 50 Mo., 158, do not conflict with these views. That case holds that the original contractor should be made ,a defendant, but there is no intimation that, where there is a joint contract, it is necessary to bring in all the contractors.
2. The notice of the claim was sufficient. The objection was merely formal and not substantial. This notice was held to be sufficient when this case was formerly before this court. (See Putnam vs. Ross, 46 Mo., 337.)
Let the judgment be affirmed.
