8 Mo. App. 193 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This action is oh a mechanic’s lien for painting and glazing four houses belonging to defendants I. and J. Meyer,, defendant Cook being the contractor. The claim is for a balance due upon one single charge, for doing all the painting and glazing upon these four houses, at the contract, price of $1,200, of which $430 has been paid, leaving due-$770.
It appears from the evidence that Cook was under contract with the owners to complete the houses by the 1st of November, at the price of $21,800. The houses were to be-, inspected and accepted by the architect, Grrable. Four-thousand dollars was to remain on deposit in a bank, not to-be drawn out by Cook until the time for filing liens by subcontractors had elasped. These were the terms of the-written contract.
On October 27th, Cook, Grrable, and the owners went, over the houses together, and inspected them. The houses were then accepted as completed according to contract, and the keys were delivered to the owners on October 29th. On March 1, 1878, no notice of lien having been given, the: bank, by the direction of the Meyers, paid over the $4,000 to Cook. The contract of Cook with defendants provided that all broken or cracked glass must be “ replaced, at com
At the close of plaintiffs’ case, the court instructed the jury that, on the pleadings and evidence, plaintiffs are not entitled to a lien against the property; whereupon plaintiffs took a nonsuit with leave, which the court refused to set aside.
This is not like an ordinary case of agency, where the liability arises from an authority from the person whom the plaintiff seeks to chaige. But for the statute, the circumstance that the man who contracted with the owners to> erect the buildings, directed plaintiffs to do painting and glass-work upon them, and that it was done, would fix no
There may be border cases in which it will be very difficult to say that all contract relations between subcontractor and owner have ceased, and that the right to do work for which a lien may be had is gone. But we hardly think that this is one of them. The terms of the contract between the owner and the contractor were definite enough; and it is manifest, from the arrangement as to depositing money to be paid at the expiration of four months from the
In Bruce v. Berg, post, p. 204, there had been an appai'ent completion of the house, but it was not accepted by the owner or by the architect; and certain stone-steps being condemned by the architect, the subcontractor was compelled to replace them. In that casé there could be no doubt of the power of the subcontractor to order stone under the subsisting contract, and of the right to a lien on the part of the material-man, on taking the proper steps.
An improvident payment by the owner to the contractor, before the time within which liens may be filed, will of course be no defence against a lien. But where the owner
The judgment of the Circuit Court is affirmed.