Bickel v. Gray

81 Mo. App. 653, 1899 Mo. App. LEXIS 469

• Court: Missouri Court of Appeals
• Decided: November 28, 1899
• Status: Published

Opinion

BOND, J.

Action to enforce a mechanics’ lien for $851.96 against six buildings on contiguous lots. The contract was with a firm whose individual member held the title to the premises. Certain subsequent encumbrancers were made parties defendant. There was a judgment and lien therefor declared in plaintiff’s favor. The beneficiaries under the trust deeds appealed.

The first objection is that the petition is defective in omitting to state that the lien claim gave the names of the owners or contractor, and that it was verified. Section 6709 requires the lien account, among other things, to contain these recitals; and section 6712 requires the petition in a mechanics’ lien suit to “allege the facts necessary for securing a lien.” The lien account, as shown when it was received in evidence, did give the names of the owners and was verified, as required by statute, and in all other respects fully complied with the law. It is clear, therefore, that there was no absence of full proof that the lien account contained all the statements necessary to secure a mechanics’ lien for the sum therein claimed. Hence the only question is should plaintiff’s judgment be reversed for a mere omission in his petition to allege all itihe recitals in the lien account? The petition does allege the timely filing in the clerk’s office by plaintiff of “ a just and true account of the demand due him after all just credits had been given, thereon which is to be a lien upon the property described.” If appellants had objected to the lien account when it was offered in evidence for insufficiency of the allegations in the petition to warrant its reception, the petition might at once have been amended so as to allege fully and specifically the contents of the lien account. No such objection was made. The lien account was admitted and was a sufficient basis for a finding that the statutory requirements as to its substance and filing had been complied with. Unless the proof had showed compliance with the statute as to the filing of the lien account plaintiff could not have recovered. Having adduced this proof we would not be warranted in setting aside the recovery for failure of the petition to enumerate ’ all the things which the statute required the lien account to show. The statute of jeofails clearly cures the omissions in the present petition.- R. S. 1889, sec. 2113 and 2303.

It is next urged that the lien account did not specifically apportion to each of the contiguous houses the material used in them respectively under the general contract with plaintiff. This was not indispensable since the enactment of the section known as 6729, Revised Statutes 1889. While the mechanic under that section might still file separate liens against each house he is not obliged so to do, but under its authority is permitted to charge all of the contiguous buildings improved under one general contract. Such was the express design of the amendment which that section made 'to the mechanics’ lien law. Walden v. Robertson, 120 Mo. 38. In the case cited a lien was enforced which did not apportion to each building an account of the material used in its construction, but was predicated upon a total charge for the work on all the buildings. To require () the mechanic to pursue in substance the course required before the amendment made by this section of tire statute, would do away with its purpose to facilitate the enforcement of his lien account for work done under one contract upon several contiguous buildings; or in other words, to render the amendment practically meaningless. We can not concur in that view, and therefore affirm the judgment.

All concur.