Chilton v. Lindsay

Gill, J.

I. We must reverse this cause for the error of the trial court in declaring the law to be as set out in defendant’s instruction number 3, contained in the foregoing statement. That instruction was evidently given to the jury on the faith of the correctness of the rule, then, for the first time, announced in this state, to-wit: “That if the defendant paid the contractor in full the contract price, in good faith, without knowledge of the plaintiff’s demand, and that the money so paid went to the satisfaction of claims for work done and materials furnished on the building, it is, in legal effect, the same as if the defendant had paid the contract money directly for the work and materials to the subordinates, and that his property cannot be subjected to the plaintiff’s demand for the excess.” Henry v. Rice, 18 Mo. App. 497. That is, that, under the circumstances in the instruction mentioned, the liability of the land-owner for improvements, constructed thereon, should be limited by the price agreed upon between such owner and the building contractor. At the time of trial of this cause in the court below, the rule announced in 18 Mo. App., supra, was the only decision on the question by any court of last resort in the state. Since then, however, the supreme court of Missouri has taken a different view, and unqualifiedly disapproved Henry v. Rice. See Henry & Coatsworth Co. v. Evans, 97 Mo. 47. By this decision the supreme, court has said that the right of a sub-contractor to enforce a mechanic’s lien is not limited by the amount fixed by the contract between the owner and original contractor, and this is now the law of this state, and to which the decisions of this tribunal must conform.

II. Counsel for plaintiff in error insists that we enter judgment, or direct the lower court to enter judgment, for the enforcement of the lien against defendant Lindsay’s property. We cannot do this with our understanding of this record. Defendant’s instruction number 4, quoted in the foregoing statement 'of the case, is based on some evidence at least, and the instruction, we think, embodies a correct principle of law.. If plaintiff stood by and consented to the payment to Higgins of all that was owing by defendant, then plaintiff cannot now complain.

The judgment must be reversed, and cause remanded for a new trial.

All' concur