Squires v. Fithian's Administrator

| Mo. | Mar 15, 1858

Napton, Judge,

delivered the opinion of the court.

This action seems to be brought upon the hypothesis that the law in this state gives a lien against the owner of a lot where the contract for building is not made with him but with a person who has no interest in the premises. The local law of St. Louis provides for the case of a lease, but there was no lease proved in this suit — nothing at best but a tenancy at will. The act of 1843 provides only for leases which may be recorded, and of course alludes to such interest as must be, under the statute of frauds, in writing. (Sess. Acts, 1843, p. 83.) It was not thought necessary, it may be supposed, to provide for interests short of this, as it was not contemplated that a person having a less interest in the premises than an estate for years would be willing to put up improvements on them. Our lien laws have not, like the Pennsylvania acts, adopted the principle of making land liable to a lien for improvements made thereon without regard to the right or title of the person ordering them.

The second instruction given by the court at the instance of the defendant was erroneous. The thirty days’ notice referred to in the act of 1843 is confined to sub-contractors, and the petition does not proceed upon the hypothesis that the plaintiff was a sub-contractor under Eithian; nor does the evidence tend to establish such a state of facts.

The instructions given by the court in relation to the point of time from which the sis months’ limitation commences to run are somewhat confused as they appear on the record. Undoubtedly, after the actual completion of the work contracted for, the builder can not by a mere artifice, such as driving in a few nails, save himself from the operation of the limitation. Of this the jury, in each case, must judge according to the proof. But where the contract is really incomplete, where the work is prosecuted from time to time as materials may be provided or as the progress of other work may require, the mechanic is not required to file his lien within sis months of the termination of each detached piece of work, but within six months of the completion of the whole work.

The evidence in this case tended to show that the lien was filed in time; but we can perceive no benefit to be derived by the plaintiff from a reversal of the judgment on this ground, since upon the main theory of his case he can not maintain his action. That Madame Leitensdorfer was bound in equity and good conscience to pay for this work, we think the evidence tends very satisfactorily to show; but that is not the question here. The only question is whether the plaintiff’s remedy is given by the mechanics’ lien law, and we do not see how he can get along under this statute. Whether Madame Leitensdorfer’s conduct, in witnessing and approving the progress of this work, thus conducted under a contract nominally with her son-in-law, who she knew had received from her no evidence of title, would justify an inference that she was really the principal in the contract and Dr. Fithian but acting as her agent, we are not now called upon to determine.

The other judges concurring, the judgment is affirmed.