Berkshire v. Holcker

• Decision Date: 16 June 1919
• Docket Number: No. 12314.,12314.
• Citation: 202 Mo. App. 433,216 S.W. 556
• Parties: BERKSHIRE et al. v. HOLCKER et al.
• Court: Missouri Court of Appeals

216 S.W. 556

202 Mo. App. 433

BERKSHIRE et al. v. HOLCKER et al.

No. 12314.

Kansas City Court of Appeals. Missouri.

June 16, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by John H. Berkshire and others against Irma H. Holcker and others. Verdict for defendants. From an order granting a new trial, defendants appeal. Reversed and remanded, with directions.

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellants.

Numa F. Heitman and Ellis, Cook & Dietrich, all of Kansas City, for respondents.

TRIMBLE, J.

Plaintiffs are a copartnership engaged in business under the name of the Berkshire Lumber Company. The firm, as one of several lien claimants, brought this action under sections 8235a to 8235g, Laws 1911, p. 314, to establish a materialman's lien against real estate owned by defendant Irma H. Holcker, wife of the defendant Otto Holcker. The other lien claimants were made parties and filed their respective petitions, wherein each of them, like plaintiffs, set up a right to a lien against the property on the ground that they furnished material to one Brown, who had a written contract with the husband, Otto Holcker, for the erection of the improvements involved.

In order to establish their liens, it was necessary for the lien claimants to show some agency connection, in the nature of a moving cause, reaching from the improvements back to the owner of the land; and, as the only right or authority Brown had from any one to go upon the land and erect the improvements was the written contract signed by himself and Otto Holcker, and as none of the lien claimants had any basis or authority whatever for the furnishing of material except their contracts with Brown, the only way in which any connection reaching back to the owner could be established was to show that Otto Holcker in making the contract with Brown was acting for and on behalf of his wife and as her "agent" within the meaning of that term as used in the lien statutes. The various lien claimants, therefore, charged in their respective petitions that Otto Holcker, in contracting with Brown for the erection of the improvements, did so as the agent of his wife. This was denied by each of the Holckers. On the contrary, they assert that Otto Holcker made the contract in fact, as it appears to be on its face, for himself individually.

Thereupon all of the lien claimants, pursuant to section 8235f, Laws 1911, p. 316, filed a joint motion, alleging that "there is an issue of fact in this case which is common to all the mechanic's lien claimants who are parties to this action," and that the issue of fact referred to was whether or not Otto Holcker was the agent of Irma Holcker, his wife, in the erection of the building described in the pleadings, and moved the court to frame said question into an issue of fact and submit it to a jury.

This motion the trial court sustained, and an issue was written and submitted whereby the jury was required to find whether the husband was the wife's agent to erect, or cause to be erected, the improvements in controversy. After a trial, the jury returned said issue with their verdict, stating that they "find the issues for the defendants and answer said question, `No.'"

The lien claimants' motions for new trial were sustained by the court on the sole ground that error was committed in giving instruction No. 6 for defendants, and they have appealed from that order.

Said instruction No. 6 told the jury that the sole issue (submitted by the court as above stated) for their determination was whether the contract in evidence between Otto Holcker and Brown (the contractor) was entered into by Otto Holcker for and on behalf of himself, or by said Otto Holcker for and on behalf of his wife, Mrs. Irma Holcker, and, if the jury believed from the evidence that the contract between Otto Holcker and said Brown was made and entered into by said Otto Holcker for and on behalf of himself and as his own individual contract, then the verdict should be that said Otto Holcker was not the agent of Mrs. Irma Holcker. It is said that this instruction narrowed the issue. We think it did not. It states the very issue formulated by the court at the request of the lien claimants and to which no objection was offered either to its scope or form. None of the lien claimants make any claim that they furnished any labor or material directly to either Mr. or Mrs. Holcker, but all claim that they furnished it to Brown, the general contractor. It is undisputed and beyond question that the only right or authority Brown had from any one to go upon the land and erect the improvement was the written contract in evidence signed by himself and Otto Holcker. As hereinbefore stated, there was no connection of any sort between Mrs. Holcker and the general contractor, Brown, or between her and any of the lien claimants; there was no connection between Otto Holcker and any of the lien claimants giving them authority, even from him, to furnish material for the improvements, save and except the contract he made with Brown. Consequently the only, route, by which any possible connection between the lien claimants and the owner could be traced, lay through the contract between Otto Holcker and Brown. This being so, then unless it was shown that Holcker, in contracting for said improvements, did so for and in behalf of his wife, there was no relationship of any kind established between the lien claimants and the owner, Mrs. Holcker. It cannot be said that the effect of the instruction upon the minds of the jury was to withdraw from their consideration the evidence covering the general aspects of the question whether or not the husband was acting in his wife's behalf—i. e., with her active volition and consent as a moving cause in procuring him to erect the improvements for her—because the instruction in no way deals with the evidence to be considered by the jury in order to determine the issue submitted; and the jury were told in plaintiffs' instruction No. 4 that in arriving at their verdict they were not required to find that there was any formal written authority from the wife to the husband to enter into a contract with Brown for the erection of the improvements, "but in determining whether the defendant Otto Holcker was authorized by his wife, Irma Holcker, to erect or cause to be erected the building and garage upon the real estate in question, you shall take into consideration all of the facts and circumstances in evidence." So that we are unable to perceive any error in said instruction No. 6.

But it is true, as stated by claimants, that if there is any other error in the trials of which complaint has been made in their motions for new trial, advantage may be taken of it to justify the granting of the new trial, even though it was not mentioned by the trial court. State ex rel. v. Thomas, 245 Mo. 65, 149 S. W. 318.

Among these other alleged errors is the one that the lien claimants' refused instruction No. 1 should have been given, The refusal, however, is fully justified because said instruction 1 is wholly covered by lien claimants' instruction No. 4 hereinabove mentioned. Besides, instruction No. I. submitted solely the bare hypothesis whether the husband "was authorized by his wife to erect or cause to be erected the building and garage upon the real estate in question," and, if so, then the jury should answer the question submitted to them in the affirmative; and the court could well have refused the instruction on the ground that, under the peculiar state of the evidence as to the wife's knowing that the husband was building the house and was passively willing to allow him to do so, the instruction should not have used the word "authorized," standing alone and unexplained, as though it meant an agency even within the meaning of the lien statutes, which at least requires that some active element in the nature of a moving cause should emanate from the owner to the one making the improvements before the owner's land can be affected by a lien. By the wife's passive permission and consent the husband would be "authorized" in the sense that he would not be a trespasser, and yet there would be no element of agency, within the meaning of the lien statute, emanating from the wife to the. husband, as an active and moving cause on her part, to procure the erection of the improvements. And unless there was at least this sort of an agency existing between the owner and the husband, there is no ground for a lien on the owner's land under our statute, as we will hereinafter show in dealing with the question of whether the lien claimants were entitled to a directed verdict, as is now asserted by them on appeal. There was no question but that the wife did passively allow the husband to build the house, he using his own property and means to pay therefor; and therefore the court might as well have given a peremptory instruction as to have given the one under consideration, for the jury would have been led to believe that, as the husband was authorized by his wife's mere passive consent, this was sufficient to afford foundation for such agency as is necessary and requisite to the establishment of a lien. Lien claimants cite Holland v. McCarty, 24 Mo. App. 112, where the word "authority" was held a proper word without explanation of what it meant. But the word was there used in connection with the question whether an architect ordered the plaintiff to do some extra work "without authority" from McCarty, the owner. In that connection, and as applied to that evidence, the word was plain, with but one meaning, and with no possible ground of misunderstanding; but, as applied to the evidence in the case at bar, it was susceptible also of the meaning hereinbefore noted.

It is also claimed that the court erred in striking out a part of lien claimants' instruction 5 before giving it. The instruction was to the effect that although Otto...