Baker v. Smallwood

JOHNSON, J. This suit is to enforce a mechanic’s lien filed by a sub-contractor whp agreed with the original contractor to do the painting of a residence under construction according to the plans and [258] specifications for the lump sum of $180'. Judgment was recovered by-plaintiff for tbe full amount of bis demand and a lien was adjudged. Tbe appeal was taken by tbe owner of tbe property. Tbe request of tbe appealing defendant for an instruction in tbe nature of a demurrer to tbe evidence . should bave been sustained for two reasons. First no evidence was offered by plaintiff to prove that tbe indebtedness for which be claimed a lien accrued witbin four months next preceding tbe filing of tbe lien. Tbe statute provides (section 8217, R. S. 1909) that “it shall be tbe duty of every original contractor witbin six months, and every journeyman and day laborer witbin sixty days, and every other person seeking to obtain tbe benefit of tbe provisions of this article witbin four months, after tbe indebtedness shall bave accrued, to file -with tbe clerk of tbe circuit court of tbe proper county a just and true account of tbe demand due him or them after all just cr.edits bave been given,” etc. Tbe affidavit to tbe lien account is not evidence of tbe date of its accrual and to entitle a sub-contractor to a lien it is just as essential that be introduce proof that bis lien was filed witbin four months of tbe accrual of tbe account as it is to prove that be furnished tbe material and that it went into the building. [Darlington v. Eldridge, 88 Mo. App. 525.] Second. Tbe account filed, so far as it relates to tbe work done by plaintiff under bis original contract with tbe contractor was insufficient to preserve bis lien. Tbe account is as follows: “December 15', 1909'. W. H. Smallwood, Contractor, Dr., John C. Kroge, Owner, Lot 10, Coleman Highlands, Thirty-second & Summit Sts., Kansas City, Missouri. [259] To W. C. Baker, 441 Drury, Kansas City, Mo. June 1909, to November 29, 1909. To contract painting house with W. H. Small-wood, contractor, John C. Kroge, owner, 32nd & Summit ......................$180.00“” Then follows an itemized list of extras, amounting altogether to $86.36. As to the extras the account is sufficient but its insufficiency with respect to the work furnished under the principal contract is too plain to admit serious discussion. The rule is well settled that notwithstanding the sub-contractor’s agreement with the contractor fixes his compensation at a lump sum, to be entitled to a lien, the account filed by him must be fairly itemized to constitute it “a just and true account” within the meaning of the statute. [McWilliams v. Allan, 45 Mo. 573; Lowis v. Cutter, 6 Mo. App. 54; Kling v. Construction Co., 7 Mo. App. 411; Foster v. Wulfing, 20’ Mo. App. 85; Graves v. Pierce, 53 Mo. App. 285; Rude v. Mitchell, 97 Mo. 372; Cahill v. Orphan School, 63 Mo. App. 28 ; Grace v. Nesbitt, 109 Mo. 9.] In Rude v. Mitchell the Supreme Court say: “Many things are often included in these building contracts for which the law gives no lien; and when it calls for a just and true account, it means a fairly itemized account, showing what the materials are, and the work that was done and the price charged, so that it can be seen from the face of the account that the law gives a lien therefor. A lumping item of the whole contract price on the one hand, and the credits on the other is no compliance with the law at all. The account should be complete on its face, and a reference to plans and specifications for the work done and materials' furnished is a worthless reference and adds nothing to the statement. These liens are creatures of the statute and the lienor must make and file an account which is a fair and substantial [260] compliance with the law. If he fails to do this he has no lien for the materials and work not thus specified.” The judgment is reversed and the cause remanded. All concur.