Darlington v. Tozer

BLAND, P. J. The suit originated before a justice of the peace; its purpose was to obtain a personal judgment against defendant Tozer, and to enforce' a mechanic’s lien against two houses erected on a lot situated in the city of St. Louis, and belonging to defendant Eldridge. The Lincoln Trust Company is the beneficiary in a deed of trust on the premises in which Garrell is the trustee, for this reason they were made parties' defendant. Plaintiffs had judgment in the justice’s court; defendants appealed. On trial de novo in the circuit court, plaintiffs again recovered a personal judgment against Tozer and a judgment establishing their lien. Defendants Eldridge, The Lincoln [528] Trust Company and Garrell appealed to this court. The affidavit attached to the lien account filed in the clerk’s office, stated that Eldridge was the owner of the premises. The notice of the filing of the lien stated that Charles H. ¡Rutledge was the owner of the premises. The notice was attached to the lien paper. The petition filed before the justice, stated that Charles H. Rutledge was the owner. In the circuit court plaintiffs were, over the objection of defendants, permitted to amend the petition by striking out the name Rutledge whenever it occurred and inserting the name of Eldridge. The plaintiffs’ account was for lumber and shingles furnished Tozer, contractor for the erection of two buildings on the lot described. Defendants objected to the introduction of any evidence for the reason no notice of the filing of the lien had been given as required by the statute (the notice filed stating that Rutledge was the owner) ; the court overruled the objection, to which ruling an exception was saved by defendants. The insertion of the name Rutledge, instead of Eldridge in both the petition and notice was evidently a clerical error. Eldridge appeared both before the justice and in the circuit court by attorney and defended against the establishment of the lien. The notice was attached to the lien account and any one in interest reading the notice, would read also the lien paper, from which he would have been informed of the clerical error in the notice. No one was misled or deceived, or in the least prejudiced by the amendment of the petition or by the error in the notice. And the court correctly permitted the amendment and correctly admitted the notice in evidence. By the evidence for plaintiff all the facts necessary to establish their right to a lien were proven but one, viz: plaintiffs introduced no evidence whatever tending to prove when their lien account accrued. To entitle a materialman, who has furnished a contractor for a building, to a lien on the building for the value of [529] such material, it is as essential that he file his lien account within four months from the accruing of the account as it is to prove that he furnished the material and that it went into the construction of the building. Sec. 4207, R. S. 1899; Mfg. Co. v. Burns & Co., 59 Mo. App. 391; Bolen Coal Co. v. Ryan, 48 Mo. App. 512. On the trial the following occurred: “By the court (addressing counsel for defendants) : You don’t dispute the aer count ? (Mr. Holland, counsel of defendants) : No, sir. Not the account. The defendants will admit, Your Honor, that sufficient material went into the house to make the price that has already been mentioned.” There is nothing in this admission from which it can be inferred that defendants admitted or intended to admit that the account accrued within four months next before the filing of the lien. The affidavit to the lien account is not evidence of the correctness of the account nor of the date of its accrual, as was' intimated in a former opinion delivered in this cause by this court. The statute requiring the account to be sworn to (section 4707), does not make the affidavit evidence of the correctness of the account. That it is not evidence under the general law does not admit of discussion. But it is contended by the plaintiffs that no point was made on the trial of a failure of proof. It was not the duty of defendants to especially call the attention of plaintiffs to the fact that they had failed to prove an essential fact to entitle them to recover. The defendants did what is usual in such circumstances — offered a demurrer to the plaintiffs’ evidence after they had rested — and rested their defense on the demurrer by declining to offer any evidence. The omission to prove the date when the account accrued was doubtless an oversight, but it was an oversight that is fatal to the judgment, and necessitates a new trial. [530] For failure on the part of plaintiffs to prove that the account accrued within four months next before the filing of the lien account in the circuit clerk’s office and for no other reason, the judgment establishing the lien is reversed and the cause remanded. All concur.