
    Robert L. Henry et al., Appellants, v. W. T. Mahone et al, Respondents.
    Kansas City Court of Appeals,
    June 28, 1886.
    1. Mechanic’s Lien—Contract with Partnership for Materials— Effect of Dissolution of Partnership—Case Adjudged. Where a contract was made with a partnership to furnish materials for a building, and, pending the furnishing aforesaid, the partnership was dissolved by the retirement of one of its members ; the continuity of the running account was broken by the dissolution of the original firm, and it required a new contract, express or implied, between the builder and the new firm to establish a running aeeouni between them.
    2. -Distinct Contracts—In what Matter Lien Claim made— Case Adjudged.—When materials or labor have been furnished under distinct contracts, it is necessary that the lien should be filed under such contract. And if plaintiffs in this case are entitled ta file a lien in their own names (as assignees of and successors tc the interest of the retiring partner), they should have filed a separate lien on the claim, prior and subsequent to the dissolution, and not have joined them as one account, as they did, in this case.
    Appeal from Jackson Circuit Court, Hon. Turner A. Hill, Judge.
    
      Affirmed.
    
    Statement of case by tlie court.
    . On and prior to January 1, 1882, the plaintiffs and one Samuel B. Barker, were partners, doing business' under the firm name of Henry, Barker & Coatsworth. •On January 1, 1882, Barker retired from the firm, and assigned all his interest in the account sued on to the plaintiffs, who continued the business of the firm under the firm name of Henry Brothers & Coatsworth.
    Prior to Barker’s retirement, the firm of Henry,. Barker & Coatsworth, had contracted with the defendant,. W. T. Mahone, to furnish materials for the house mentioned in the petition and had delivered to Mahone, under the contract, materials to the value of $261.15. After-wards, on January 2, and February 7,1882, the plaintiffs-furnished' materials, under the contract aforesaid, to Mahone to the value of $35.41. At the time the materials-were furnished, Mahone had possession of the lot in. Kansas City, oh which the'house was being constructed,, under a bond for a deed made by one P. S. Brown, Mahone failed to comply with the condition of said bond and after the house was completed, surrendered possession of the lot to Brown and cancelled the said bond. Afterwards, Brown conveyed the lot by warranty deed to J. N. Biddle.
    On March 23, 1882, the plaintiffs filed their mechanic’s lien in the office of the circuit clerk. The lien, was a single one, including both the materials furnished by Henry, Barker & Coatsworth, as well as those furnished by the plaintiffs, with nothing to show that the-accounts were separate, and with no assignment set forth. The aggregate amount stated to be due was $296.50, which was the sum of the two accounts. The affidavit of Jay Coatsworth to the lien states that “Robert L. Henry, George W. Henry, and Jay Coatsworth are' partners as Henry Brothers & Coatsworth, and that the-account annexed is a just and true account of the demand due said firm of Henry Brothers and Coatsworth from W. T. Mahone, for lumber and building materials furnished by the said firm at the request of, and under and by virtue of a contract with, the said W. T. Mahone,” etc.
    P. S. Brown and J. N. Biddle were parties defendant with W. T. Mahone. The court tried the case without the'intervention of a jury. .
    
      The court refused all the declarations of law ashed by all the parties and.made the following finding:
    “The court finds the defendant, W. T. Mahone, indebted to plaintiff in the sum of $309.8S upon the account sued on; that plaintiffs have a mechanic’s lien against the property in the petition described, as to $37.88 of the said indebtedness of said defendant, W. T. Mahone, but are not entitled to prosecute their said lien for a greater amount;” and the court rendered judgment accordingly.
    The plaintiffs have appealed from said judgment.
    W. J. Strong, J. K. Cravens, for the appellants.
    I. Prior to the filing of the lien one of the original firm retired and assigned his interest to his co-partners, the plaintiffs. Plaintiffs were substituted to all the rights of the original firm, and were entitled to enforce the lien for the whole demand, as the successors of the ■original contract.
    II. The lien is only an incident to the debt, and an assignment of the debt carries with it the right to a lien; filing the lien is only one step towards enforcing the right, and while the claimant cannot enforce his lien against the property until he has complied with the provisions of the statute, still his right to the lien ■exists from the time that his work and materials go into the building. Douglas v. Zinc Co., 56 Mo. 388. No greater right exists after filing the account than existed before, as it is the furnishing of labor and materials that gives the lien, and not the filing of the account.
    III. The assignee of an account might file the lien and enforce it. Goff v. Papin, 34 Mo. 177; Jones v. Hurst, 67Mo. 568. “The lien adheres to the debt, no matter how such debt may be evidenced.” Ib.
    
    IV. The statute must be construed literally so as to advance the remedy, and not merely in the strictness of the letter. Putnam v. Ross, 46 Mo. 337; Osier «. Rohenan, 46 Mo. 595 ; DeWitt v. Smith, 63 Mo. 263.
    
      V. Previous to a judgment no lien, in fact, exists,, hence the assignment of the right, after filing the account^ could convey -no more than would be conveyed by assigning the the account before filing. Allen r>. Mining and Smelting Co., 73 Mo. 688.
    Lathrop & Smith, for the respondents.
    I. The continuity of the account between Henry,: Barker & Coatsworth and Mahone was broken by the retirement of Barker, and a separate lien should have been filed for the two hundred and sixty-one dollars due from Mahone to the firm when Barker retired. This wag not done either by the old firm or by their successors, The lien filed by plaintiffs in the name of Henry Brothers & Coatsworth for the amount due thevi, for lumber and materials furnished by them, to Mahone, could not, certainly, entitle them to enforce a claim for materials furnished by Henry, Barker & Coatsworth. C. B. Allen & Co. v. Mining and Smelting Co., 73 Mo. 688.
    II. The lien under our statute is a personal right given to the mechanic, material man, or laborer, as the case may be, for his own protection; and the right to enforce it cannot be assigned or transferred to another. Hence any lien for the materials furnished to Mahone by the firm of Henry, Barker cfe Coatsworth must have been: filed by thevi, and in their own name. Roberts ¶. Howler,. 3 E. Smith (N. Y.) 632 ; Rollin v. Cross, 45 N. Y. 766 ,- P ear sons r>. Tinker, 36 Maine, 384; Caldwell v. Lawrence, 10 Wis. 331; Tewksberry v. Bronson, 48 Wis. 581; Brown ®. Smith, 55 Iowa, 37; Langan v. Lankey•, 55 Iowa, 52.
   Hall, J.

The firm of Henry, Barker & Coatsworth was dissolved by the mutual consent of its members. Such was the effect of the retirement of Barker from said firm. Henry Brothers & Coatsworth became the successors of Henry, Barker & Coatsworth, and continued to furnish materials to defendant Mahone, under the .original contract between Mm and the first firm. The continuity of the running account was broken by the dissolution of the original firm. Gerard B. Allen & Co. v. The Smelting Co., 73 Mo. 693.

It required a new contract, either express or implied, between Mahone and the new firm of Henry Brothers & Coats worth to establish a running account between them. Id.

When materials or labor have been furnished under distinct contracts it is necessary that the lien should be filed under each contract. Id.; Livermore v. Wright, 33 Mo. 31. Conceding, for the purposes of this case, that the plaintiffs, on account of the fact that they were members of the original firm of Henry, Barker & Coats-worth, and that Barker had assigned to them his interest in the account in suit, might have filed a lien in their own names upon the said account; we are of the opinion that they should have filed a separate lien on that account, and should not have filed one lien upon that account united and joined with the account for materials furnished by them after the dissolution of the original firm. Gerard B. Allen & Co. v. Smelting Co., supra.

The finding and judgment of the circuit court were correct, and the judgment is affirmed.

All concur.  