Shotwell v. Kilgore ( 1853 )

Mr. Justice Fisher

delivered the opinion of the court.

The defendant in error brought bis suit by petition before a justice of the peace of Chickasaw county, to enforce a lien which he insisted existed in his favor, by virtue of the act of 22d of February, 1840, Hutch. Code, 627, “ entitled, An Act to reduce into one the several acts, and parts of acts, for the benefit of mechanics.”

The defendant sold certain lumber to one Sample, who was a carpenter employed by the plaintiff's to make an addition to their storehouse. Sample failing to pay for the lumber, the defendant in error brought his action to enforce, what he alleged, his lien on the lot, for payment of the amount due for the lumber. Sample is not shown to have been either the proprietor or lessor of the lot sought to be subjected to the payment of the debt in controversy. On the contrary, the evidence is clear that he had no interest whatever in the property. To constitute a lien under the statute of 1840, the contract must be made between “the proprietor or lessor” of the property on the one part, and the person agreeing to do the work or to furnish the materials.

The plaintiffs in error made no contract with the defendant. Their contract was with Sample, whom they have paid.

The judgment is manifestly wrong. The petition on its face, discloses no cause of action whatever against the plaintiffs in error. Judgment reversed, new trial granted, and cause remanded.