Burgwald v. Weippert

49 Mo. 60

Opinion

Bliss, Judge,

delivered the opinion of the court.

The petition states that defendant John Weippert entered into a contract with the plaintiff, by which the latter contracted to erect a brick dwelling upon the land of this defendant’s wife, the said Eliza; that he performed the contract; that in due time he filed his account for the work to obtain a lien upon the building and lot under the act providing for mechanics’ liens, and asked for the proper judgment. Issues were made up, the cause went to trial, the plaintiff obtained a general judgment against both defendants, and a special one against the property.

Defendants object to the record, first, because the petition shows that the contract was made with the husband and not the wife, to whom the land belonged. The contract must have been made for her use, as the house was to be erected on her land, and hence comes within the express provisions of section 21, chapter 195, Gen. Stat. 1865 (Wagn. Stat. 911), that “every person, including all cestuis que trust, for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made, shall be included in the words ‘ owner or proprietor ’ thereof under this chapter, not excepting such as may he minors over the age of eighteen years or married xoomen.” The petition, then, states a good cause of-action.

But the objection to the judgment is well taken. No general judgment should be rendered against Mrs. Weippert, and so far as she is concerned, the proceeding should be only against the property improved by the building. It should therefore be reformed, and the judgment of the Circuit Court is reversed and the proper judgment entered in this court.

The other judges concur.