Barker v. Berry

• Decision Date: 09 March 1880
• Citation: 8 Mo.App. 446
• Parties: JOHN BARKER, Plaintiff in Error, v. GEORGE W. BERRY ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

8 Mo.App. 446

JOHN BARKER, Plaintiff in Error,

v.GEORGE W. BERRY ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1880.

1. There can be no mechanic's lien except where the work is done or the materials are furnished under or by virtue of a contract with the owner, or his agent, trustee, contractor, or subcontractor.

2. Where the husband contracts in writing, in his own name, for the construction of a house upon his wife's land, that the wife knew of the erection and gave directions as to the construction of some closets does not show that the husband acted as her agent, nor that she adopted the contract and made it her own.

3. In such a case it is too late to raise for the first time in the appellate court the question whether the husband's interest in the wife's land is bound by the lien.

ERROR to the St. Louis Circuit Court.

Affirmed.

TAYLOR & POLLARD, for the plaintiff in error: If the wife knew the house was to be built, and that it was intended for her use as a family residence, and if she visited the building and gave personal directions as to some portions of the work, thereby ratifying the act of her husband in erecting said house, and has since lived in it, then a lien would obtain.-- Collins v. Megraw, 47 Mo. 495; Burgwald v. Weippert, 49 Mo. 60; Schmitt v. Wright, 6 Mo. App. 601; Schwab v. Saunders, 46 Ill. 18; Barker v. Berry, 4 Mo. App. 585; Weber v. Weatherbie, 34 Md. 656; Decamp v. Gaskill, 1 Cin. Superior Ct. 337; Mattice v. Lillie, 24 How. Pr. 264; Higgins v. Ferguson, 14 Ill. 269; Donaldson v. Holmes, 23 Ill. 85. Our merchanics' lien law gives to mechanics a lien on the property of married women, the same as if they were feme sole.-- Gen. Stats. 768, sect. 21. And the provisions of this law are to be liberally construed to uphold the lien.-- Putnam v. Ross, 46 Mo. 337; Oster v. Rabenau, 46 Mo. 595; Dewitt v. Smith, 63 Mo. 263; Hassett v. Rust, 64 Mo. 325. The husband's curtesy n the property was sufficient title to enable him to make a contract which would support a lien.-- McCarthy v. Carter, 49 Ill. 53; Drake v. Glover, 30 Ala. 382; Ph. on Liens, 121, sect. 81.

GEORGE P. STRONG, for the defendants in error: There was here no contract with the owner.--Wag. Stats. 907, sect. 1. The contract was explicitly a personal one with the husband, and the wife did nothing to make that contract her own.-- Garnett v. Berry, 3 Mo. App. 197 (citing Porter v. Tooke, 35 Mo. 107; Squires v. Tittman, 27 Mo. 134; Belding v. Cushing, 1 Gray, 576). See also Miller v. Hollingsworth, 33 Iowa, 227; Knopp v. Brown, 11 Abb. Pr. (N. S.) 124, 125; Dearie v. Martin, 78 Pa. St. 55, 57; Eystra v. Capelle, 61 Mo. 578 (citing 2 Bishop's Mar. Wom., sect. 396); 9 Pet. 629; Rowell v. Klein, 44 Ind. 291; McClaren v. Hall, 26 Iowa, 297.

HAYDEN, J., delivered the opinion of the court.

This is a suit brought by a subcontractor against Berry, the contractor, and Edward C. and Harriet Chamberlin, to enforce a mechanic's lien. The house was built under a written contract between Edward C. Chamberlin, the husband, on the one part, and the defendant Berry, “with John Barker as security,” as the contract states, as party of the second part. The title to the land was in Mrs. Chamberlin, the wife, by deed directly to her and her heirs, and she was not mentioned in the contract. The contention of the plaintiff upon the trial was that the wife gave directions as to the construction of the house and adopted the act of the husband, as expressed by the contract, in having the house built upon her land. On the other hand, the defendants Chamberlin contended that there was no contract made or order given on the part of the owner, Mrs. Chamberlin, and that no one assumed to act for her, or as her agent; hence the husband only was liable. The court refused the instructions asked by plaintiff and gave its own, leaving the jury to say from the evidence whether the husband, in making the contract with Berry, acted in behalf of his wife, but directing them, if the husband made the contract without authority from her, to find against the lien.

The instructions of the plaintiff were properly refused. It was unnecessary to have any instruction covering all the issues raised by the pleadings. Upon the trial the paper issues were sifted, and the court properly gave instructions directed to the points really in controversy. If there was any error in these, it was that the evidence on the part of the plaintiff was too slight to justify the conclusions to be deduced in his favor. In fact, there was no evidence tending to show that the wife was bound by what the husband had done. Of his own accord he made his express contract in writing for the building of the house, with which contract she had nothing to do; and, in the absence of any evidence other than that which this record discloses, there can be no presumption, so far as any lien is concerned, such as that which arises where the work is done or materials furnished for any building upon land “under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor,” to use the essential words of the statute. Here the contract was not with the owner. It is true that the lien does not arise from the written contract as such, but from the furnishing of the materials or doing the work upon order or direction for them; but where there is a written contract, this governs in ascertaining the nature of the order, so far as the contract covers the work at least, in the absence of other directions, and here are none. The husband ordered, and used his own money. The wife knew of the building, but this fact would not authorize the jury to infer that she ordered the work to be done, or was bound so far as her land was concerned. It was perfectly consistent with the express arrangement of the special contract that the wife should visit the building and know that it was in progress. There was no obligation upon her to dissent from the agreement that the contractor had been...