Schulenburg v. Bascom

Holmes, Judge, delivered the opinion of the court. The case depends upon the determination of the single question, whether the 18th section, concerning mechanics’ liens in the county of St. Louis (Laws of 1856-7, p. 670), requires the notice to be given by a sub-contractor, to be in writing, or whether a verbal notice may be sufficient. We think it must be a notice in writing. It is provided that the sub-contractor “ shall give ten days’ notice before the filing of the lien, as required by this act, to the owner, owners, or agent, or either of them, that he or they hold a'claim against such building or improvement, setting forth the amount, and from whom the same is due.” It is not expressly said that the notice must be in writing; but the general tenor, the object,, and the policy of the act, and the nature of the thing, and especially the manifest and almost necessary import of the words “ setting forth the amount, and from whom the same is due,” would seem to contemplate and imply a written notice. Any other construction would lead to great difficulties and uncertainties in [192] the practical operation of the act. It is presumed the practice always has been to give a notice in writing. We must hold that such is the proper construction of this section. The notice which was given was a written paper, but no name was signed to it, nor did it state from whom it came, nor who held the claim. These .were essential requisites to make a valid notice — 1 E. D. Smith, 654. They cannot be supplied by evidence of verbal information to the same effect. If this could be done in reference to one particular, it could be done as to all, and the whole would be reduced to a merely verbal notice. The act is in derogation of common law, and must be strictly complied with by every person who asserts a claim of right under it. Where a written notice named one only of two persons who were joint defendants in an execution, it was held to be sufficiently explicit to render mistake impossible, and that it gave substantial information of all that was required in that particular case—Alexander v. Brown, 1 Pet. 683. But the same strictness was not required there as in these cases of mechanics’ liens, with regard to which the most rigid rules of construction have generally been adopted. It follows that the notice given was not sufficient, and that the instruction given by the court was correct. Judgment affirmed. Judge Wagner concurs ; Judge Lovelace not sitting.