88 Mo. App. 12 | Mo. Ct. App. | 1901
This is an action to enforce a mechanics’ lien in which plaintiff prevailed in the trial court, and defendants Myers, owners of the property, appeal. The action is brought by “Albert Eichardson as administrator as surviving partner of the estate of Eichardson & Heins (Henry Heins, deceased),” against O’Connell as contractor and defendants George M. and Laura V. Myers as owners of the property sought to be charged with the lien. O’Connell, the contractor, to whom the material was furnished by Eichardson, made no defense and did not appeal. The defendants Myers at the trial offered the following instruction which was refused:
“If there was no contract between plaintiff, Eichardson & Heins and O’Connell for any part of the bill of materials sued on, before the death of Henry Heins, and the materials sued for were not in the stock of Eichardson & Heins and was not owned by them at the time of the death of Henry Heins, then the lien in this case can not be sustained.”
It appears that Eichardson & Heins were partners engaged in the planing mill business up to the death of Heins which occurred on the first day of June, 1899. That after the death of Heins, Eichardson became administrator of the partnership estate and continued the business. The material now in contest was furnished to O’Connell for the Myers building and orders were given for it by O’Connell after the death
The case of Miller v. Hoffman, 26 Mo. App. 199, is like this in essential particulars, and it was there held, in an opinion by Judge Rombauer, that a mechanics’ lien for material furnished to a contractor after the death of a partner could not be enforced by the surviving partner against the property of the owner. The only material point of difference between that case and this, in the respect here considered, is that in that case it does not appear that the surviving partner brought the action as administrator of the partnership estate, while here the action is so brought. That fact, however, can make no difference in the result reached. Richardson had no authority to contract new obligations for the dissolved partnership. The right to a lien must rest on a valid contract between the lienor and the owner or other statutory parties.
In view of the fact that at the death of Heins none of the material furnished O’Connell was in stock and that. it was purchased by Richardson after the death, it might be suggested that Richardson should be allowed a lien. But it will not be of service to him in this action to inquire into what would have been his rights as an individual, since the suit is founded upon the other theory and the lien account, as well as the notice thereof, are in the name of plaintiff as administrator. His ac
It is said that there is an implied promise by the Myers (by force of law) to pay for the material that went into their houses. This can not be. In the first place, Myers had nothing to do with the purchase of the material. It was obtained from Richardson on the order of O’Connell, the contractor. But above all there can not be an implied promise where an express promise of the same thing would be void. Simpson v. Bowden, 33 Maine 549. It follows from the foregoing views that defendants’ instruction above set out should have been given.
Objection is made to the sufficiency of defendants’ abstract and it is asked that their appeal be dismissed. Several conflicting and confusing affidavits are filed, here on the subject of verbal agreements made by counsel in the cause in relation to the abstract, especially as to corrections and additions. It is sufficient to say that the abstract, as originally made, presents the points here considered. Indeed, there is no difference between the parties as to the facts on which we dispose of the case.
The judgment will be reversed.
