Bethell v. Bethell

• Decision Date: 07 April 1888
• Citation: 17 P. 813,39 Kan. 230
• Parties: ANNIE BETHELL v. THE CHICAGO LUMBER COMPANY
• Court: Kansas Supreme Court

17 P. 813

39 Kan. 230

ANNIE BETHELL v. THE CHICAGO LUMBER COMPANY

Supreme Court of Kansas

April 7, 1888

Error from Cloud District Court.

ACTION brought by M. T. Greene and others, constituting The Chicago Lumber Company, against Annie and John Bethell, who were husband and wife. The action was brought to foreclose a mechanics' lien against defendants for lumber and material purchased for the erection of a dwelling house, and for repairing and transforming a carpenter shop into a dwelling house, on certain lots in Concordia, Kansas, alleged to have been owned by Annie Bethell in her own right. The plaintiff claimed that the lumber in controversy was sold under a contract with John Bethell, the husband of Annie Bethell, the owner, for the erection of these buildings, and that said lumber was furnished and used for that purpose, and that part payment was made therefor by Annie Bethell. Defendants claimed that said lumber was purchased by John Bethell as contractor, and that as such contractor he had a contract with Annie Bethell, his wife, for the erection and repairs of said buildings, by the terms of which he was to furnish all the material therefor at a stipulated price; that said sum had been paid to the contractor without knowledge of any claim of the plaintiff company. Trial by the court, at the October term, 1886, and judgment for the plaintiff and for the foreclosure of the mechanics' lien, as prayed for. The court made findings as follows:

"FINDINGS OF FACT.

1. On the 11th day of September, 1883, the defendants were and still are husband and wife, and on that day the defendant Annie Bethell was the owner of lots 30, 31, 32, 33, 34 and 35, in block 156, in Concordia, Kansas. All of said lots are adjoining tracts, and are not separated by any intervening land, but they were not all purchased by said Annie Bethell at one time, nor all from the same grantor. At that date there was a dwelling house on lot 34, which extended across the line on lot 35. There was also a carpenter shop on lot 33, and the remainder of the premises was vacant and unoccupied. The carpenter shop and the dwelling house were independent of each other, were not used in connection with each other, there being a space of about four feet between the two buildings, and no passageway communicating from one to the other.

"2. On September 3, 1883, the defendants, who were then husband and wife, and the defendant Annie Bethell being the owner of said premises, made a written contract between themselves by the terms of which, for a stated sum, the defendant John Bethell was to repair and improve said carpenter shop, and convert it into a dwelling house, he furnishing the material and doing the work. And on the 3d day of October, 1883, the defendants made another written contract, by the terms of which, for a stipulated sum, said John Bethell was to furnish the material and do the work necessary to erect and complete a new dwelling house on lots 30 and 31. Said contracts were afterward performed by both parties, except that the new building was erected on lots 31 and 32, with a space of about eight or nine feet intervening between it and the carpenter shop. All of said houses have since been occupied by numerous tenants at the same time, and were never all leased to one person.

"3. On September 11, 1883, said John Bethell made a contract with the plaintiff for the purchase at an agreed price per thousand feet, of as much lumber as he would need in altering the carpenter shop into a dwelling house, and erecting a new dwelling house on said lots. This contract was made with W H. Fullerton, the manager of plaintiff's business. Said Fullerton was not informed of the existence of any contract between the defendants, but was informed by the defendant John Bethell that he and his wife had talked the matter over and concluded to alter the old carpenter shop into a dwelling house, and build a new house. He also informed said Fullerton that any time he wanted the money he could go to the defendant Annie Bethell, and she would pay him. Upon this contract plaintiff furnished the lumber used in the alteration of the said carpenter shop and the erection of the said new dwelling house, for the price of which this action was brought. Said Fullerton twice called on the defendant Annie Bethell for money on account of said lumber, and on each occasion an amount of money was paid by her to him on said account, and at each of said times she requested said Fullerton to give her a receipt for the amount paid, which he declined to do, but gave receipts for the same to John Bethell.

"4. All the entries made in the books on account of the plaintiff relating to the transaction were made in the name of John Bethell, and the name of Annie Bethell nowhere appears in said books. Neither is there in said books any description of or reference to said lots.

"5. The last item of materials furnished by plaintiff under said contract, and used in the alteration and erection of said dwellings, was furnished on the 14th day of January, 1884. The plaintiff's statement for a mechanics' lien was filed in the office of the clerk of the district court of Cloud county, March 17, 1884. This action was commenced December 24, 1884. In entering said mechanics'-lien statement, in the record of mechanics' liens, the clerk entered therein the name of John Bethell as owner, but the statement which was filed gives the name of Annie Bethell as owner, and states that the contract under which the lumber was furnished was made with her husband, John Bethell. Said statement was subscribed by W. H. Fullerton, as plaintiff's manager, and was by him sworn to before J. W Sheafor, notary public, who is now and was at the commencement of this action the attorney of record of the plaintiff. No copy of mechanics'-lien statement was ever served on any person, nor furnished nor delivered to either of the defendants."

"CONCLUSIONS OF LAW.

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