Fitzpatrick v. Thomas

61 Mo. 512

• Court: Supreme Court of Missouri
• Decided: January 15, 1876
• Status: Published

Opinions

Hough. Judge,

delivered the opinion of the court.

The defendant has appealed to this court from a judgment enforcing a mechanic’s lien for labor and materials furnished by the plaintiff, for the erection of four houses on land belonging to the defendant at the date of the contract with the plaintiff, and described in the petition and' the statement of lien filed, as one entire tract having a front of 110 feet on Pine street, an'd a depth of one hundred and fifteen feet, five and a half inches. The answer, in addition to other defenses, denied that plaintiff’s claim, or any part thereof, constituted a lien upon the premises described in the petition.

The plaintiff’s own testimony tended to show that the houses were disconnected from each other, having an open space of three or four feet between them, and were erected upon distinct lots of land; that there was no difficulty in making an estimate of the quantity of brick in each house, and if they had not been constructed for the same owner, separate accounts would have been rendered therefor.

1. Mechanic's lien — Denial that plaintiff’s claim constitutes a lien, has what effect. —Under the late practice act of this State, in suit to enforce a mechanic’s lien, a denial that plaintiff’s claim constitutes a lien on the land is sufficient to nut in issue the liability of the property to be charged with the lien. All other facts necessary to constitute a Hen must be specifically denied or they will stand admitted.

The only instruction which it will be necessary to notice, is the following, which was asked by the defendant but refused by the court: £:If it appears from the evidence that the premises described in the petition are four separate, distinct and several houses and lots, and that the amount of brick and labor furnished by plaintiff upon each of said four houses separately could have been ascertained by, or was known to the plaintiff at the time he filed the lien, then the court declares it was the duty of plaintiff to apportion the aggregate amount of his claim as to the four houses separately, and to file his stateinent of mechanic’s lien upon each house and lot separately, and plaintiff having failed to do so, the plaintiff is not entitled to a mechanic’s lien against the premises sned for.”

There was testimony on which to base this instruction and it should have been given, although that portion which relates the ability of the plaintiff to apportion the labor and material is wholly immaterial and unnecessary. It was his duty to do it. This question was considered and passed upon in the cause of Fitzgerald vs. Thomas, decided at the present term. It can make no difference in the present case, that the person who was the owner of the ground at the time the contract was made, is the sole defendant. The language of the statute and the policy of the law alike forbid our making this case an exception on that account. Each separate house and lot must be charged with the amount expended upon it, and upon it only, and then no complications can arise.

The judgment will be reversed and the cause remanded.

All the other judges concur except Judge Vories, absent.