Towner v. Remick , 1885 Mo. App. LEXIS 205 ( 1885 )

Philips, P. J.

This is an action by plaintiffs as sub-contractors to enforce a mechanic’s lien on the property of the defendants, Walter A. Bunker and John Mc-Ewen. The defendants, O. L. Remick and John M. Stone, were the contractors to build a certain house for. said B unker and McEwen. As such contractors, they bought lumber, etc., from plaintiffs. After the work was done, and the owners of the building had paid off the contractors, plaintiffs attempted to perfect a mechanic’s lien on the premises to secure a balance owing them by said contractors amounting to over one thousand dollars. The circuit court found the issues for plaintiffs, and after entering up judgment in personam against the contractors, Remick and Stone, foreclosed the lien against the property of Bunker and McEwen, and entered judgment in rem against the same. From this judgment Bunker and McEwen prosecute this appeal.

I. Occupying, as the plaintiffs do, the position of sub-contractors, as a pre-requisite to their right of action to enforce the lien against the property of the owners, Bunker and McEwen, the statute (sect. 3190), prescribes that they “shall give ten days’ notice before the filing of the lien to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from-whom the same is due.” The notice given in this case is as follows :

“Mr. W. A. Bunlcer, Manager K. C. Newspaper Union :

“Dear Sir — Please to take notice that we hold in our hands for collection a claim of $1,373.60 for lumber furnished by Thompson, Towner & Co., at request of Remick & Stone; that this lumber was used in the construction of your property, corner of Ninth and Ann street^, and that we shall file a mechanic’s lien for this amount upon said building and property, unless same is settled by April 6, next.

“M. E. Jones and H. D. Ashley,

“Per Ashley.”

To this notice was appended the following certificate :

“Served the within notice on W. A. Bunker by delivering to and leaving with him a true copy thereof, this twenty-fifth day of March, 1882.

“Henry D. Ashley.”

Is this notice a substantial compliance with, the statute ? bertainty to a common intent is sufficient in these notices. Adherence to mere form is not so essential as to substance; and such nicety and rigidity of construction should not be applied to this statute as would destroy its purpose or unduly perxlex and embarrass the remedy for the protection of the artisan and material man. And yet the courts cannot lose sight of the fact that such a right as the sub-contractors are seeking to enforce is one in inritvm, so far as the owners of the property are concerned. Hoffman v. Walton, 36 Mo. 617. Between the owners of the property and the subcontractor there is no equity, because there is no privity of contract. Phil, on Mech. Liens, sect. 349. As the right to the extraordinary remedy pursued by the .plaintiffs is conferred alone by statute, both on principle and authority, the. statute must be followed in all its substantial requirements.

The first requisite of the section of the statute under consideration is, that the notice must be served ten days before filing the lien. There was actually no proof as to the date when it was served in this case. The certificate of Henry Ashley is not competent evidence of such service. It is not claimed that he was an officer whose return would be prima facie evidence of the fact and date of service. The certificate of this private citizen is not even sworn to. In this particular, the notice is, therefore, bad.

The next requirement of the statute is, that the notice must be given “to-the owner, owners or agent, or either of them.” The grammatical structure of the words, as well as the obvious purpose of the law, compel the construction that where there is more than one owner the notice must be served on all, or their agent., The words: “or either of them,” mean that the notice may be given to the owner, or his agent, or to the owners or their agent.

Bunker and McEwen are the joint owners, tenants in common, of this property. Waiving any discussion of the question made as)to whether the notice to “Mr. W. A. Bunker, Manager K. C. Newspaper Union” — he being at the head of such an institution — is sufficient to bind him individually, it was certainly not good to bind the property owned by him and McEwen. This was. so held, in effect, in the concluding part of the opinion in Schulenburg et al. v. Bascom et al. (38 Mo. 189); and we are of opinion that such is the plain mandate of the statute. The language of the statute is so explicit that it must stand for a reason. Nor can this omission in the notice be cured by the parol testimony of Ashley, that he was referred by McEwen to Bunker as the party to serve. There is no question of estoppel in pais in the issues.. The notice must be in writing and served on the owners. Schulenburg et al. v. Bascom et al., supra; Hess et al. v. Poultney et al., 10 Md. 257.

We further hold that this notice is bad because it is not signed by the plaintiffs, nor does it purport even to be signed by their agent. It is signed by “M. E. Jones and H. D. Ashley, per Ashley.” They do not sign as agents or attorneys. Even if it were competent to supply this omission by parol testimony, we fail to find anything in the record which would authorize Jones and Ashley to take steps to enforce a mechanic’s lien. The notice does not state that Thompson, Towner & Co. will file a lien, but that “we” — that is, Jones and Ashley- — will file such lien. The defendants had a right to disregard such a notice. Schulenburg v. Bascom, supra.

The infirmity of this notice presents an insuperable obstacle to the enforcement of the lien. This renders it unnecessary to notice other matters of error raised by the appeal.

The judgment of the circuit court, as to the appellants, is reversed.

All concur.