Badger Lbr. & Coal Co. v. Pugsley
| Citation | 61 S.W.2d 425 |
| Decision Date | 22 May 1933 |
| Docket Number | No. 17406.,17406. |
| Parties | BADGER LUMBER & COAL CO., APPELLANT, v. PAUL H. PUGSLEY ET AL., RESPONDENTS. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Jackson County. — Hon. A. Stanford Lyon, Judge.
AFFIRMED.
Arthur Johnson and Goodwin Creason for appellant.
E.B. Silvers for respondents.
The action herein was prosecuted as an action in equity to establish and foreclose a materialman's lien.
The trial court rendered a decree in favor of the defendants and against the plaintiff. Plaintiff duly appealed and cause duly sent to this court.
It appears from the record that Paul H. Pugsley and Jeanette M. Pugsley, his wife, owned by the entirety a parcel or lot of ground in Kansas City, Jackson County, Missouri, which they platted as a subdivision to the city. This suit involves lots 30, 31 and 32 of this sub-division which is known and designated as Broadmoor addition.
There was erected in this sub-division, during the years 1926 and 1927, thirty (30) or more dwelling houses.
The plaintiff's petition contains the following allegation: "That the defendants Paul H. Pugsley and Jeanette M. Pugsley, his wife, being the owners of the following described real estate, to-wit: All of Lots Thirty (30), Thirty-one (31), and Thirty-two (32) in Broadmoor Court, a Sub-division of land in Kansas City, Jackson County, Missouri, as per recorded plat thereof, on or before July 8, 1926, entered into one entire general contract with the plaintiff, Paul H. Pugsley acting for himself as principal and as agent for Jeanette M. Pugsley, his wife, and for their mutual benefit, by and with the consent and approval of said Jeanette M. Pugsley for the purchase of lumber and building materials to be used in the construction and erection of one one-story frame dwelling with sleeping porch, and two one-story frame and stucco dwellings each with sleeping porch, to be built upon the above described land; that in pursuance of said contract the plaintiff between July 8, 1926, and March 31, 1927, both inclusive, did sell, furnish and deliver to said defendants, Paul H. Pugsley and Jeanette M. Pugsley, lumber and materials to be used and which were used in the construction of the above described improvements; that the prices charged for said lumber and materials were the fair and reasonable prices charged therefor, which said defendants Paul H. Pugsley and Jeanette M. Pugsley agreed to pay; that the amount of said indebtedness, after giving all just credits, is $2,026.14, particulars of which will more fully appear from the itemized statement and account which is hereto attached and made a part hereof; that demand has been made by plaintiff upon said defendants for payment of said indebtedness; that said account accrued and became due on March 31, 1927, which was the date of the last delivery of building material by plaintiff as shown by said account; and that said account still remains unpaid."
The pleadings present a clear statement of the material steps to be taken in proceeding to establish a mechanic's lien for material furnished. The plaintiff's right to recover in this action rests entirely upon the issue as to whether or not the facts presented in evidence establishes the agency of the husband, Paul H. Pugsley, to act for his wife, Jeanette M. Pugsley, so as to subject her interest in the estate owned by the entirety to the lien herein sought to be established and foreclosed.
It will be noted that the plaintiff designates the contract upon which the claim is asserted as "One Entire General Contract." It appears that the plating of the sub-division was a development scheme wherein quite a number of houses were being constructed and placed on the market to prospective buyers. There appears to have been no written contract with the plaintiff for the furnishing of the material for the project. It appears that, after suit brought but before trial. Paul H. Pugsley died and the suit was duly revived against his heirs Jeanette M. Pugsley and Madeline M. Pugsley.
It appears from the record that the contract was entered into with plaintiff by Paul H. Pugsley alone, but is alleged that he also acted on behalf of his wife. The only evidence in the record as to the contract is admissions of Paul H. Pugsley that he had contracted with plaintiff to furnish the material for the project. The evidence is to the effect that plaintiff did furnish the lumber and material stated in the account in evidence.
It is alleged in plaintiff's petition that the material involved was sold and furnished between July 8, 1926, and March 31, 1927, and the evidence is to that effect.
It is shown by the record that Paul H. Pugsley and his wife executed mortgages on each of the houses in question and that what is termed construction mortgages were executed by the husband and wife. The holders of these mortgages are made parties defendant herein and plaintiff is asking for a lien superior to these mortgages.
The appellant, hereinafter referred to as plaintiff, urges in its briefs filed that the language of its petition, above set forth, pleads estoppel. The plaintiff presents that Jeanette M. Pugsley, the wife of Paul H. Pugsley, by her activities touching the project in hand by her acts and conduct so ratified the acts of her husband as to be estopped from being heard to say, that her husband was not acting as her agent and in her behalf in the buying of the materials used in the construction of the houses in issue. The appellant admits that the agency claimed was not such as entitles plaintiff to a personal judgment against the wife but. "that Paul H. Pugsley entered into the contract in question, not only for himself, but for his wife to the limited extent of binding her property for the payment for the materials used in the construction of the buildings ..." (Italics ours.)
As to the plaintiff's pleading being sufficient as a plea of estoppel, we conclude not.
It is a general rule that if allegations amount to an estoppel it is sufficient. [Cadematori v. Gauger, 160 Mo. 352.]
Estoppel, though very indefinitely plead, is good if no objections are made by demurrer or motion to make more definite. [Olden v. Hendrick, 100 Mo. 533.] There is nothing in the record of this case from which we can conclude that plaintiff was urging that it had plead estoppel until such presentation was made in one of its briefs filed herein.
We see nothing in the pleading that brings this case within any exception to the general rule that estoppel must be plead with particularity and precision.
In the case of Marshall, et al. v. Hall et al., 200 S.W. 770, there is reported a case where the husband contracted to construct improvements that were made on the real estate of the wife. The pleadings in the Marshall case are very similar to those in the case at bar. The grounds urged therein by the plaintiff are practically the same as herein. In other words, the plaintiff was urging therein agency of husband based upon ratification. In that case on appeal the lien was refused and in closing the court uses this language: "If plaintiffs desire to rely upon estoppel, they should plead the facts relied upon therefor."
The plaintiff, in the case at bar, pleads as an assertion of fact that the husband contracted as the agent of the wife. The pleader nowhere pleads that the husband made the contract and that the wife thereafter by her actions and conduct became estopped to deny the husband's agency.
While we conclude that no estoppel is plead, still there is evidence shown in the record that though not admissible to prove estoppel when the same had not been plead, still the same should be given consideration and weight touching those matters that are by the pleadings put in issue, that is as to whether or not there was an implied contract as to the wife.
In the text (R.C.L. 902) it is said: "Though there may have been no original agency, there may be such express or implied ratification of the husband's contract as to render a married woman's land liable for the improvements made thereon."
The rule has been announced in this State, that ratification to be relied on must be plead. However, LAMM, J., in an opinion (Lipscomb v. Talbott, 243 Mo. l.c. 28) criticizes the rule with very persuasive argument. While we conclude that ratification has not been specifically plead, still the fact that there may be evidence in the record bearing upon that issue of ratification that was not specifically objected to, we conclude to give full consideration to this testimony for whatever purpose it may serve in the determination of the equities in the case.
As before stated, plaintiff contends that the acts and conduct of the wife concerning the construction program in the sub-division that is presented in the record establishes the fact that her husband was her agent to the extent of subjecting her property to the lien.
The plaintiff cites a long line of Missouri cases in support of its contention. The cases cited, with the exception of two, one dealing with equitable title and one with partnership, are cases where contracts are made by a husband for construction of improvements on...
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