Barnett's v. Clooney

Rombauee, P. J. The plaintiff recovered a judgment on mechanic’s lien against the property of the appellant. The latter assigns two errors which he claims should lead to the reversal of the judgment. One is that there is no substantial evidence in the record that the material sued for entered into the construction of building; the other is that the plaintiff needlessly filed two mechanic’s liens for the same account, and thereby lost his right to enforce either. The cause was tried by the court sitting as a jury, and the only instruction asked by the defendant was one in the nature of a demurrer to the evidence, which the court refused. No instructions were given for the plaintiff or by the court of its own motion. It was admitted that two liens were filed upon the same account. The first lien paper.filed which is not in the record, but the contents of which are stated in plaintiff’s reply to defendant’s answer, stated that plaintiff’s contract was made with Banker and Edwards; also, that they were the contractors for the erection of the building, whereas in point of fact plaintiff’s contract was made with the Banker and Edwards Building Company, á corporation, and said building company was only a subcontractor under one Smiley, who was the original contractor. The plaintiff 'filed this second lien to remedy the defects in the first lien filed, but both liens were filed within four months after plaintiff’s cause of action accrued, and suit was instituted within ninety days after the filing of the first lien. It was decided in Mulloy v. Lawrence, 31 Mo. 583, that a person can file but one mechanic’s lien upon the same account, and if he files a lien and fails to bring suit upon it within ninety days thereafter, his right to enforce a second lien, although filed within the statutory period, is gone. In the later case of Davis v. Schuler, [667] 38 Mo. 24, it was held that if the first lien thus filed is for some cause void, the contractor may thereafter within the statutory period file another lien and proceed to enforce it, because the first lien filed is in contemplation of law no lien at all. This latter view was approved in Williams v. Railroad, 112 Mo. 463, as being more in keeping with the spirit of the statute. Finally in South Missouri Lumber Company v. Wright, 114 Mo. 326, the rule was extended still further, and it was decided that although the first lien filed is not void but defective only, the mechanic claiming the benefit, of the law may within the statutory period file another lien remedying the defect. We conclude that the plaintiff’s case is sufficiently covered by this last decision. His first lien was not void but defective. He sought to remedy the defect by filing another. As he brought his action within ninety days after filing the first lien, he by filing the second in nowise extended his time to sue, although suit was instituted on the second lien. It is not conceivable how this course can prejudice the rights of the defendant in any way, or extend or vary his liability. We, therefore, overrule this assignment of error. . Touching the second point made the record shows the following facts: The plaintiff had no direct evidence that the material furnished by him (which consisted of various kinds of brick) entered into the construction of the building, but he did have direct evidence tending to show that all the brick used in the construction of the building were furnished by him. This evidence was connected with that of a measurer, who measured the brick in the building after its completion, and who testified to the number and character of the brick contained in it. The amount thus testified to was somewhat less than the amount of the brick claimed to have been furnished by the plaintiff to the [668] contractor. The court based its finding, not on plaintiff’s account of brick sold and delivered, but on the measurer’s evidence. It does appear inferentially that the brick furnished by the plaintiff did enter into the construction of the building, and that the plaintiff’s recovery was for less than the brick furnished, since we can take notice of the fact that some material is always wasted in the use. In fact, the plaintiff’s recovery was less by $50 than it probably would have been had the brick been directly traced into the building. We, therefore, overrule the second assignment likewise. All the judges concurring, the judgment is affirmed.