Meyer v. Broadwell , 83 Mo. 571 ( 1884 )

Black, J.

1. This was an action to enforce a mechanic’s lien for work done and materials furnished in the construction of a stone foundation wall upon the property of the wife of defendant. The appellant and his wife were made parties to this suit and were notified by publication only. They appeared and filed an answer; subsequently they procured a continuance of the cause, and at a later term filed an amended answer in which, for the first time, as a second defence, they alleged that they were residents of the state at the commencement of the suit, and, not having been served with personal process, the court had acquired no jurisdiction over them. The appearance to the suit and the pleadings thus made waived the irregularity of the process, if any there was, and they subjected themselves to the jurisdiction of the court, and this portion of the amended answer was properly stricken out.

2. The petition counts for the value of the work and materials. The answer was a general denial, except as to some items of alleged credit given by the plaintiff; and a counter-claim for materials belonging to defendant, alleged to have been converted by the plaintiff to his own use. The evidence showed that the work was done at the instance of the appellant for himself, and that the wife had nothing to do with it. The court found for the defendants, as to the lien, but gave judgment against the appellant for the balance found due the plaintiff. The fact that the work was done on the property of the wife and no lien was or could be enforced therefor, did not prevent a recovery against him. The work was done for him and he was liable therefor.

3. At tie close of the evidence defendants, among •other instructions, asked the court to give one in the nature of a demurrer to the evidence which was refused. This, it is contended, should- have been given because there was evidence tending to show that the work was done under a written proposal of plaintiff to do the same at specified prices, and that the work had not been completed, but was abandoned by plaintiff. On the other hand there was some evidence that plaintiff quit the ■work before completion because of defendant’s failure to pay for the work done as agreed. If the defendant relied upon any such special agreement he should have pleaded it and the breaches so that an intelligent issue would have been raised. Whether the proposal was accepted, and the work done thereunder, were questions of fact to be determined by the trial court, a jury having been waived, and cannot be properly disposed of on such a ■demurrer. Besides this, there were items sued for not embraced in the proposal, and the defendant’s liability for these could not be determined on such a demurrer. 'The other instructions refused relate mostly to the mechanic’s lien and need not be considered. -Affirmed.

All concur.