Opinion
Opinion filed April 3, 1931.
1. — Mechanic's Lien. The foundation of a mechanic's lien is the lien statement filed with clerk of circuit court, and unless lien statement is filed as required by statute, no lien attaches.
2. — Same. In mechanic's lien case, burden is on plaintiff to prove all essential elements of his case where the answer is general denial.
3. — Same. Where title to real estate is vested in both husband and wife, and wife does not join with husband in contract for building materials to be used on said premises, no lien attaches against said land, unless the proof shows husband was acting as wife's agent.
Appeal from Greene County Circuit Court. — Hon. Warren L. White, Judge.
REVERSED AND REMANDED.
F.W. Barret for appellants, Grant O. Short and Etta Short.
(1) Where a petition to enforce a materialman's lien, charges a joint contract, recovery must be on that theory or none at all, although the evidence may disclose a right to recover upon some other cause of action not pleaded. Coen v. Bettman, 166 Mo. App. 671. (2) A judgment, in a materialman's suit to enforce a lien, cannot go beyond the scope of the petition. Wenzlick v. Funck Lumber Co., 224 S.W. 60; W.F. Coen v. Bettman, 166 Mo. App. 671. (3) An estate by the entirety cannot be subjected to a materialman's lien, unless both the husband and the wife were bound by a contract to pay, or unless when one contracts he or she is acting as the agent of the other. Goldberg Plumbing Supply Co. v. Taylor et ux., 237 S.W. 900; Kurtz v. Field et al., 14 S.W.2d 9; De Ranks v. Lee, 200 S.W. 79; H.B. McCray Lumber Co. v. Standard Const. Co., 285 S.W. 104. Agency cannot be inferred from fact that wife knew that her husband was about to procure the performance of the work, Planing Mill v. Brundage, 25 Mo. App. 268; or that the wife knew that he was about to enter into the contract, Garnett v. Berry, 3 Mo. App. 197; or that wife knew of contract by husband and that material was furnished thereunder and gave directions as to minor changes, Hughes v. Anslyn, 7 Mo. App. 400; or that wife gave directions, Planing Mill v. Brundage, 25 Mo. App. 268; Barker v. Berry, 8 Mo. App. 446; Kuenzel v. Stevens, 71 Mo. App. 286. (4) There is no evidence in the case, that a lien claim was ever filed with the circuit clerk. Such action is the foundation for a suit to establish a lien. Section 7221, R.S. 1919; Boland v. Webster, 126 Mo. App. 591.
Hamlin, Hamlin Hamlin for appellant, H. Proserpi.
Wear Benton for respondent.
(1) To warrant establishment of a mechanic's lien against real estate of wife for building erected thereon under contract, with the husband, it is essential to show such an arrangement or agreement between husband and wife, or facts and circumstances from which such an arrangement or agreement may be inferred, so as to constitute the husband the "agent" of the wife, and such agency for the wife may be inferred though the husband contracted with the builder in his own name. Henry Evers Mfg. Co. v. Grant, 284 S.W. 525. If agency of husband to bind wife's separate property may be inferred from facts and circumstances, so his agency to bind her interest in property held by the entirety may be inferred. (2) The agent mentioned in the statute may be a person with such limited authority as to be unable to bind his principal personally for the work, but who at the same time, by the exercise of the limited authority, given will transmit to the person furnishing the materials a right to a lien upon the owner's premises. Ward v. Nolde, 259 Mo. 285.
Action in equity under the statute to enforce a mechanics lien and to determine and to adjudge priority of liens. The trial court found for plaintiff and entered judgments to enforce its lien. It also found for plaintiff against defendant Hart, who was the contractor and rendered personal judgment against him. It found against the claims of defendants O'Byrne and Proserpi on their claims for liens. Defendants Short and Proserpi appealed.
The judgment in this case will have to be reversed and the cause remanded for new trial because of what is likely an oversight in the trial of the case or a mistake in preparing the abstract of record for use in this court. The foundation of a mechanics lien is the lien statement filed with the clerk of the circuit court of the county where the property is located. Unless this lien statement, which must be in substantial compliance with the provisions of the statute, is filed as required by the statute, no lien attaches. In this case the petition of plaintiff alleged all the facts required to be alleged including the allegation that a lien claim was duly filed. The answer of the property owners was a general denial. This placed on plaintiff the burden of proving all the facts necessary to be shown to entitle it to a lien. One essential fact necessary to be proven was the fact that a proper lien claim was duly filed. This could only be done by placing in evidence the lien claim itself. That was not done in this case and without that proof, plaintiff failed to make a case. [Boland v. Webster, 126 Mo. App. 591, 105 S.W. 34.]
The title to the land in this case was a joint title in Grant O. Short and Etta Short, husband and wife. Defendant, Hart, was the contractor and the contract to build the house was in writing and signed by Mr. Hart and Grant O. Short but not signed by Etta Short, the wife. It is contended that by reason of that fact a mechanic's lien could not attach to nor be enforced against the land. If that were all that was shown at the trial, we should hold with appellant Short on that question, but we think there was evidence sufficient to take to the trier of the facts the question whether Grant O. Short who signed the contract was at the time also acting as agent for his wife to an extent sufficient to bind the land owned by them jointly under the mechanic's lien law. Since the case is to be re-tried, we do not deem it necessary at this time to set out the evidence or review the authorities which lead us to this conclusion.
We also refrain at this time from passing upon the merits of the case of appellant Proserpi.
The judgment will be reversed and the cause remanded. Bailey and Smith, JJ., concur.