Uthoff v. Gerhard

42 Mo. App. 256, 1890 Mo. App. LEXIS 368

• Court: Missouri Court of Appeals
• Decided: November 11, 1890
• Status: Published

Opinions

Thompson, J.

This is an action by a firm of subcontractors to recover from the principal contractors a balance due the plaintiffs for work and labor done and materials furnished, and also against the owner of the-building, on which the work was done and to which the-materials were furnished, to enforce a mechanic’s lien thereon. The plaintiffs had a judgment against the-principal contractors in the sum of $1,812.95, and also-a judgment establishing the same as a mechanic’s lien against the house and lot of the other defendant, the owner thereof. The last-named defendant prosecutes this appeál, and questions the propriety of so much of the judgment as establishes the lien against his property.

It appeared without dispute that the plaintiffs knowingly included in their account $152.10 more than was due to them at all from their principal contractors.

We do not intend to go into the reasons given by the plaintiffs for doing this, nor do we intend to intimate that they intended to cheat anybody. It is sufficient for us to see from the undisputed evidence that they included in the account filed as the basis of their claim of lien this large amount, not as the result of inadvertence or mistake, but knowing that it was not due them from the principal contractor's. The law does not alio w this to be done.

The statute requires the lien claimant to file “ a just and true account, after all just credits have been given.” R. S. 1889, sec. 6743. The special statute of 1857, relating to mechanic’s liens in St. Louis county, contained the same provision; and, under that statute, it was held that such an account, in which the lien claimant neglected to give credit for one- hundred and sixty dollars, which had been paid thereon, was not the “just and true account” required by the statute, and that the filing of such account gave no lien. Hoffman v. Walton, 36 Mo. 613. That decision was followed and applied in Kling v. Railway Construction Co., 7 Mo. App. 410, where the lien was filed for about three times the amount actually due. It is true that this last case was, upon its face, a much more flagrant one than the case in 36 Mo., or the case at bar; but the principle is the same. The principle is that, whatever indulgence may be made in favor of honest mistakes, especially as to matters where there may be room for doubt or difference of opinion, — especially under Revised Statutes, 1889, section 6749, which directs the court' to render a judgment “in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs, although the creditor may have unintentionally failed to enter the full amount of credits in his account filed, to which the defendant may be entitled,” — yet, where the lien claimant, who is a subcontractor, intentionaliy fails to enter the full amount of credits to which the principal contractor is entitled, he fails to file the “just and true account” required by the statute, and hence gets no lien.

The judg'ment will be reversed, and the cause remanded, with directions to modify the judgment by entering judgment in favor of the defendant (xhio. It is so ordered.

All the j udges concur.