Wright v. Hood

• Citation: 5 N.W. 488,49 Wis. 235
• Parties: WRIGHT v. HOOD and another
• Decision Date: 20 April 1880
• Court: United States State Supreme Court of Wisconsin

5 N.W. 488

49 Wis. 235

WRIGHT v. HOOD and another

Supreme Court of Wisconsin

April 20, 1880

Argued April 2, 1880

APPEAL from the Circuit Court for Racine County.

Action to foreclose a mechanic's lien. The premises claimed to be subject to the lien were owned by the defendant Alice A Hood, and were occupied by her and her husband, the defendant Samuel Hood. The complaint alleges that materials were furnished and work done upon the premises in pursuance of a contract made by plaintiff with Samuel Hood as agent for his wife. The defendants answered separately, each denying the agency of Samuel Hood and alleging that the materials and work were contracted for by him on his own account, and not by the request or with the knowledge of Alice A. Hood.

The testimony given on the trial and the instructions to the jury sufficiently appear from the opinion. A motion for a nonsuit was denied. There was a verdict for the plaintiff; and from a judgment thereon defendants appealed.

Judgment reversed and cause remanded.

E. O Hand, for appellants.

Wm. C White, for respondent.

OPINION

HARLOW S. ORTON, J.

To determine whether the value of the materials procured by the husband, and which went into the improvement of the house belonging to the wife as her separate property, is a lien upon the house, and whether the husband procured such materials as agent and on the credit of the wife, it was very material to inquire to whom such credit was actually given, and concerning the dealings and accounts between the husband and the plaintiff in respect to the same. It was already in evidence that these materials were charged by the plaintiff in a running account against the husband, which contained charges for other things besides these materials, and that bills of such accounts had been made out against the husband and presented to him, and his note demanded therefor. These bills were then offered in evidence, and, upon the objection of the plaintiff's counsel, were ruled out by the court. It is impossible to conceive any reason, sufficient or insufficient, for this ruling. It was palpable and manifest error.

We think the learned circuit judge was clearly correct in this charge to the jury: "I think the proof does not show that an express agency existed, nor do I discover any evidence of the fact that the defendant Alice Hood directed the defendant Samuel Hood to make the contract, or that she knew at the time...