Kick v. Doerste , 45 Mo. App. 134 ( 1891 )

ON MOTION FOR REHEARING.

Rombatier, P. J.

— The plaintiff claims that the instruction given by the court had reference to Doerste, the contractor, by name, and was, therefore, harmless. The contractor, although personally served, did not answer but made default, and, as the account was embodied in the petition, it is claimed that the plaintiff was entitled to judgment against Mm for the entire amount claimed, under the provisions of section 2042 of the Revised Statutes of 1889, and, as the amount of the verdict is less than the amount of the claim, the error in the instruction, if there was one, is not prejudicial.

This argument is not tenable under the peculiar facts of this case. The plaintiff’s claim was for$955.17, and interest, and the finding of the jury was for $782.20. It is evident, therefore, that the jury did not determine the recovery against the contractor on the admissions of his default, but upon the evidence. Whether the provisions of section 2042 are applicable to a case, where several defendants are interested in defending against an account, some of whom answer, and some of whom make default, and where the plaintiff, as here, instead of resting his right of recovery against the defaulting defendants upon the admissions of their default, adduces evidence to substantiate the account against all the defendants, is a proposition which we need not decide. As the admissions of record of the contractor in lien suits are not binding on the owner, it would seem to be the juster rule, and the one leading to the least complications, that the plaintiff seeking to establish his lien should be required to prove up the items of his account against both defendants in such cases, unless both make default.

The motion for rehearing is denied.

All the judges concur.: