
    Thomas J. Benham et al., Defendants in Error, v. Banker-Edwards Building Company et al., Defendants; Leo Block et al., Plaintiffs in Error.
    St. Louis Court of Appeals,
    December 4, 1894.
    1. Practice, Appellate: questioning sufficiency of petition. The sufficiency of the statement of the plaintiff’s cause of action in his petition may be questioned for the first time on appeal or error.
    2. -: -: presumptions. But, unless the contrary appears from the record, it will be presumed, in aid of the judgment of the trial court, that the evidence supplied whatever was lacking in the mere formal statement of the completeness of the plaintiff’s cause of action.
    3. Mechanics’ Leins: assignment. A mechanics’ lien is not assignable before it has been filed.
    4. -:--: novation. But when, with the consent of the owner, one original contractor is substituted in the p>lace of another, and the latter releases all claims and is wholly discharged from all his obligations under the contract, though this be done after the partial performance by him of the work contracted for, a novation and not an assignment of the contract takes pfiace, and the contractor thus substituted may file a mechanic’s lien for the entire work.
    
      jError to the St. Louis City Circuit Co%irt. — Hon. Daniel D. Eisheb, Judge.
    Affirmed.
    
      Carl Otto for plaintiffs in error.
    
      Lubhe & Muench and George W. Lublse, Jr.', for defendants in error.
   Rombatjer, P. J.

The plaintiffs in error prosecute this writ from a judgment of mechanic’s lien rendered against property, of which they are mortgagees. There is no bill of exceptions in the record; hence, as- the judgment was one by default, the writ brings up for review only the sufficiency of the petition and judgment entry. The sufficiency of the judgment entry is not challenged, but the sufficiency of the petition is; and, as this may be done in this state for the first time on appeal or error, we are bound to pass on the objections made.

The plaintiffs in error claim that it appears conclusively from the petition that the plaintiffs below have blended therein two accounts for work and labor done, namely, one account which accrued in favor of one Bryant and was assigned to them, and the other which, accrued in their own favor. It is the law of this state that, while a perfected mechanic’s lien is assignable (Jones v. Hurst, 67 Mo. 568; Goff v. Papin, 34 Mo. 177), yet the right to file a lien is not assignable and will not pass with the assignment- of the account. If, therefore, the petition of the plaintiffs below admits of no other reasonable construction than the one claimed for it by the plaintiffs in error, the judgment must be reversed.

The defendants in error do not dispute the law as claimed by the plaintiff, but they claim that the petition by reasonable intendment shows a novation of a contract, and not an assignment of it, and that, as the record conclusively shows that evidence was offered in support of the petition, we ought in upholding the judgment presume that the court found a novation.

The allegations of the petition on which this question arises, are to the following effect: The petition, after first reciting that the Banker-Ed'wards Building Company, owner and mortgagor of the premises in question, had a contract with one Bryant for the erection of certain stairs thereon, proceeds as follows: “That, pursuant to said contract, said Bryant began the erection of said stairs in said buildings, and thereafter with the consent of said company assigned said contract to plaintiffs for value, and plaintiffs thereupon became such contractors, in lieu of said Bryant with said Banker-Edwards Building Company, and completed said contract, said Bryant having released said company from all liability to him on account of said contract. That, in the performance of said contract, said Bryant and plaintiffs have furnished work and materials of the reasonable value of $744, the particulars of which will more fully appear from an itemized account thereof hereto attached as Exhibit “A.” That .claimants have received from said company in cash, and have credited on said debt, the sum of $440.60 leaving a balance due plaintiffs of $303.40, which sum has been by plaintiffs often demanded of said defendant and payment thereof refused.”

It will be thus seen that, while the petition does not in express terms state a novation, it does state it by reasonable intendment, because it states that, after partial performance of the contract by Bryant, the owners of the property accepted the plaintiffs as contractors in lieu of Bryant, and with his consent. This implies that Bryant was discharged from any further-obligations under his contract, and the plaintiffs stepped into his shoes. As the contract was an entire thing, for-all that appears in the petition, the assignment was not necessarily, or even reasonably, a mere assignment of the claim for work already performed by Bryant. We must, therefore, assume in support of the judgment of the trial court, that whatever was lacking in the petition in thé mere formal statement of the completeness of the cause of action of the plaintiffs was supplied by the evidence. Cole v. Barron, 8 Mo. App. 509; Jones v. Louderman, 39 Mo. 287.

All the judges concurring, the judgment is affirmed..  