The plaintiff’s suit is to enforce a mechanic’s lien. Plaintiff was a subcontractor, defendant Braun the contractor and defendant Parker owner of the property sought to be charged with the lien. The only questions arising in the case relate to certain setoffs pleaded by the contractor Braun. Under plaintiff’s contract for work and material he was to have $1,080 and he claims that he did extra work which was of the value of $33. He credits defendant Braun with cash payments amounting to $625, and for two thousand bricks, $80.
Defendant Braun admits that plaintiff is entitled to a credit of $9 for.extra work and no more, and asks credit for different sums among which are the follow
The sole contention here is that the court committed error in the giving and refusing of certain instructions. Instruction four given for defendant is as follows: ‘ ‘ The court instructs the jury that if they believe and find from the evidence that the plaintiff owed $292.95 for brick that was used in the construction of the Lester Parker house and that defendant Braun paid therefor at the request of the plaintiff, or that he consented to such payment, either before or after the same was made, or that by the usual course of dealing between the plaintiff and defendant Braun, said Braun had a right to infer and believe, and did believe that he was authorized to pay such brick bill, and acting in good faith under such implied authority he paid such brick bill for plaintiff, then the jury in making up their verdict will allow the defendant Braun a credit for the amount paid. ’ ’
We have italicised that part of the instruction to which plaintiff excepts. It is settled law that “no person can make another his debtor without the consent of the party benefited; there must be a previous request, expressed or implied, or an assent or sanction given after the money is paid, or the act done.” Allen’s Admr. v. Richmond College, 41 Mo. 303. And it is not the duty of an original contractor to pay claims against the subcontractor until liens for such claims have been filed and actions brought on them. Morley v. Carlson, 27 Mo. App. 5; R. S. 1899, sec. 4223. Under the law as stated there being no evidence that the owner of the claim paid by the contractor had taken any step to en
The respondents insist that appellant’s appeal should be dismissed because he has failed to comply with rule fifteen of this court. The original abstract failed to contain the judgment and the filing of a bill of exceptions. But the transcript of the clerk shows that there was a judgment, and that is held to be sufficient. The bill of exceptions which is made a part of the abstract states that such bill was filed. But it has been repeatedly held that such a recitation is not sufficient, as a bill of exceptions can not prove itself. There must be some order showing that it was filed. The amendment states however that it was duly filed. It is not necessary that a copy of the record showing it was filed should be in the abstract. The mere recitation of the fact is held to be sufficient. We hold that the abstract is sufficient.
For the reasons given the cause is reversed and remanded.