120 Mo. 38 | Mo. | 1894
This was a suit to foreclose a mechanic’s lien for materials furnished and labor performed in erecting the brick walls of six houses upon three adjoining lots, and for materials furnished and labor .performed in erecting a portion of the brick walls of a seventh house upon the east half of another adjoining lot. The lots have a front of fifty feet each, a house being placed upon the west and one upon the east half of each of the three lots and one upon the half lot, leaving a space of three feet between the houses.
According to the record before us Mr. Critchfield held the legal title to the' above mentioned, and a number of other adjoining lots. The evidence tends to show, however, that he was a mere man of straw, and that the defendants Robertson and Snyder were the real owners. They started out with the intention to build twenty-nine houses on these lots, all of the same size and the same as to the brick work. They entered into an oral contract with the' plaintiffs, whereby the plaintiff agreed to furnish the brick and other material and build the walls of the twenty-nine houses, or any less number that defendants might thereafter conclude to build; for which the defendants agreed to pay the plaintiffs the sum of $500 for each house. Payments were to be made as the work progressed, sufficient to enable the plaintiffs to pay for labor employed by them, and the walls of each house were to be paid for in full when the walls of such house were completed.
When the plaintiffs offered the lien in evidence the defendants objected, because the evidence showed that the buildings were not erected under one general contract, within the meaning of section 6729, Revised Statutes of 1889, and hence a separate lien should have been filed against each house. The court sustained this objection and excluded the lien, and this ruling presents the principal question in the case.
1. It was held in Fitzgerald v. Thomas, 61 Mo. 499, and in Fitzpatrick v. Thomas, 61 Mo. 512, that where separate buildings are erected upon separate lots, though contiguous, a single lien filed against all the lots, for the aggregate value of the material and work, was invalid.- The opinions in those cases Were promulgated in 1876, and in 1877 the legislature passed what is now section 6729 of. the Revised Statutes, 1889, for the evident purpose of changing the rule as declared in those cases. That section provides: “When the improvement consists of two or more buildings united together and situated upon the same lot or contiguous lots, or upon separate buildings upon contiguous lots, and erected under one general contract, it shall not be necessary -to file a separate lien upon each building for the work done or materials
There is some ambiguity in this section, arising from the use of the word “upon” in the second clause. We agree with the Kansas City court of appeals that “upon” as first used in that clause means “consists of.” Deardorff v. Roy, 50 Mo. App. 70. The second clause, therefore, provides for those cases where the improvement consists of separate buildings upon contiguous lots; and such is the case now in hand. The question, then, is whether the walls of the six or seven houses were erected under “one general contract,” within the meaning of the statute. It is argued that they were not because the contract does not fix the exact number of houses to be erected, and because the contract fixes the price to be paid for the walls of each house as it is completed.
It is to be observed in the first place that these betterment statutes are remedial in their character, and, when reasonable and not oppressive, are to be liberally construed. Such is the better rule, though authorities to the contrary may be found. Putnam v. Ross, 46 Mo. 337; Osterv. Rabeneau, 46 Mo. 595; De Witt v. Smith, 63 Mo. 263. It is true, mechanics’ liens are creatures of the statute, but a fair and substantial compliance with the statute is all that is required. Now it is evident-there was but one contract between these parties, and that included all the material to be furnished and all the work to be done by the plaintiffs. The fact that several buildings were to be erected had its effect in the minds of the parties when they agreed upon the price, for it may well be that the plaintiffs could build a number of walls of a number of houses for less money per house than they could build .the walls of a single house. We can not see that this contract was any the less one gen-. eral contract because the defendants retained the right to say how many houses they would build.
2. The defendants insist thatthe lien was properly exclndedbecause the statute makes no provision for those cases where, as here, the brickwork, the carpenter work, and the roofing are let to different persons. In other words the claim is that section 6729 applies only where the same person or persons undertake as contractors to erect and in all respects complete the houses. We find nothing in this section which gives any support to such a reading. This section is but an addition to and a part of the mechanic’s lien law, and must be construed with the other sections. The'sections which provide who may avail themselves of a lien apply to cases like this, as well as thG.se cases where one house is erected upon one lot.
3. As the plaintiffs had the right under the law to file one lien including therein all the material furnished and work done, and were not bound to file a separate lien against each building, it follows that it was sufficient to file this one general lien within six months after the entire account’accrued, that is to say within six months after the twelfth of February, 1890, the date at which work ceased.
4. Defendants make the further point that the charge in the lien account of $1,239.90 for labor is but
