Fathman & Miller Planing Mill Co. v. Ritter

Thompson, J., delivered the opinion of the court. This action was brought before a justice of the peace to enforce a mechanic’s lien for materials furnished by the plaintiffs as sub-contractors, under B. C. Patterson, original contractor. The statement filed before the justice of the peace was drawn so as to charge as the contractors, not only B. C. Patterson, but also J. A. Patterson and George N. Truesdale, who were [407] sureties on the contractor’s bond for B. C. Patterson, contractor ; but the joining of these additional defendants may be regarded as immaterial in the present state of the record. I. The statement of cause of action before the justice recites the furnishing of the materials, as follows: “ That said B. C. and J. A. Patterson and George N. Truesdale, as such contractors, bought of plaintiff and used in the construction of said building the materials set out in the account herewith filed, and the same entered into and. became a part of said building, owned as aforesaid, and that the defendants are now enjoying the use of the same upon the said real estate owned by said Ritter and others ; that in accordance with the terms and conditions of its contract with said B. C. and J. A. Patterson and George N. Truesdale, plaintiff has furnished materials of the value of $126.34, in, about and upon said real estate owned as aforesaid, the particulars of which indebtedness will more fully appear in the bill of items thereof hereto annexed.” It is perceived that there is here no allegation that the materials were furnished for the building as required by section 3172, Revised Statutes. By the terms of that statute, the right to the lien of a materialman is predicated on his furnishing “ any materials, fixtures, engine, boiler, or machinery, for any building,” etc. This is held to mean that, in order to support a lien, the materials must have been furnished on the faith or credit of the structure into which they enter. It is not enough that materials were furnished by the plaintiff to the contractor on his general credit, and that the materials can be traced into the particular building. Rand v. Grubbs, 26 Mo. App. 591. Two things must undoubtedly concur: (1) The materials must have been furnished for the building, and (2) as held in several cases, they must have actually' been used in the construction of the building. Scholenberg v. Prairie Home Institute, 65 Mo. 295; Fitzpatrick [408] v. Thomas, 61 Mo. 515; Simmons v. Carrier, 60 Mo. 581. These last cases do not decide, as counsel for the respondent argues, that it is sufficient to support the lien that the materials went into the building ; they merely decide that the lien does not exist unless the materials went into the building, — in other words, that it is not enough that the materialman furnished the materials to the contractor with the view of their going into the building, but they must actually go into it, so that there can be no lien if the contractor diverts them to some other purpose. The petition, therefore, fails to state a cause of action, and its insufficiency was raised by seasonable objections and renewed in a motion in arrest of judgment. As the cause originated before a justice of the peace, it might be a question whether this deficiency in the petition could be overlooked on the principle of aider by verdict, if it had been helped out by the evidence. But it nowhere appears from the bill of exceptions that any evidence was offered tending to show that the materials for which this mechanic’s lien is claimed were furnished to the contractor Patterson for this particular building, or with the view of their entering into this particular building. The bill of excexffions merely recites that the plaintiff “introduced evidence establishing his said demand against B. C. Patterson.” But this entirely falls short of showing that the material was furnished for the particular building. The judgment must accordingly be reversed ; but as this defect in the statement can be cured under the provisions of section 3060, Revised Statutes, and as the proof to support the proper allegation may possibly be supplied on another trial, the cause will be remanded. II. In view of the course we take in remanding the cause, it seems necessary to notice another point which was made by the appellants. It is-claimed by the appellants -that the statement of cause of action, as originally framed, did not contain any averment that [409] the plaintiff filed with the clerk of the circuit court the notice which the statute (R. S. sec. 2874) requires to be filed before the commencement of the suit, where it is intended to bring the action to enforce the lien before a justice of the peace. When the cause was called for trial the defendants moved to dismiss the cause for want of jurisdiction, by reason of the omission of this allegation. The court sustained the motion. Thereupon the plaintiff asked leave to amend the statement by supplying the omitted allegation. This leave the court granted and the allegation was supplied. Thereupon the defendants renewed their motion to dismiss the cause for want of jurisdiction, taking the view that the court, had no power to allow an amendment supplying a jurisdictional defect. This motion was overruled by the court, and the defendants excepted. We should not deem it necessary to notice this matter, were it not for the fact that both parties have presented the question as though it were the law in this state that an amendment is not allowable in the circuit court, in a cause appealed from a justice of the peace, which goes to the extent of supplying an averment necessary to show jurisdiction of the subject-matter in the justice. That such amendments are allowable under the present statute (R. S. sec. 3060) is shown by the case of Vaughn v. Railroad, 17 Mo. App. 4, 8, and cases there cited. The judgment of the circuit court is accordingly reversed and the cause remanded. All the judges concur.