Boeckeler Lumber Co. v. Wahlbrink
| Decision Date | 22 June 1915 |
| Docket Number | No. 13676.,13676. |
| Citation | 177 S.W. 741,191 Mo. App. 334 |
| Parties | BOECKELER LUMBER CO. v. WAHBRINK et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.
Action by the Boeckeler Lumber Company against William Wahlbrink and others. Judgment for defendants, and plaintiff appeals. Case certified to the Supreme Court.
Schulenburg & Diehm, of St. Louis, for appellant. Henry G. Trieseler, of St. Louis, for respondents.
This is an action to enforce a mechanic's lien upon a building and the lot upon which it stands, the action being against one Wahlbrink, the original contractor, and Mathilda J. Eicks and Alfred A. Eicks, husband and wife, as owners of the property and contractors with Wahlbrink for the erection of the house, as also against the trustee and beneficiaries in a deed of trust placed upon the property after the commencement of the work on the building. At a trial of the cause in the circuit court there was a judgment against the contractor Wahlbrink but in favor of Mr. and Mrs. Eicks and the other defendants claiming under the deed of trust. From this judgment plaintiff prosecuted its appeal to our court. The cause was argued and submitted and our court reversed the judgment and remanded the cause for failure of the trial court to hold, as a matter of law, that Mrs. Eicks was estopped under the facts in evidence from denying the agency of her husband in contracting for the erection of the building, we holding that the matter of agency of the husband under the facts in evidence was not a question in pais on which the jury might find one way or the other but that on the facts the agency should have been declared by the court as a matter of law. We further held that there was evidence tending to prove an estoppel against plaintiff by reason of its silence, and that whether the defendant owners were justified in relying upon that silence and acting upon which in making payment to the contractor when the materialmen had not been paid, was a question of fact that should be submitted to the jury. Both parties filed motions for rehearing. That of the respondent challenged the correctness of our holding that the court, under the facts in evidence, should have declared as a matter of law that the agency of the husband was established, while counsel for appellant claimed that we were in error in holding that there was evidence for the consideration of the jury on the estoppel claimed against the plaintiff, arguing that under the facts, the court should have held, as a matter of law, that there was no estoppel. We will consider both propositions.
The lien here sought to be enforced is for a balance claimed as due for material, there being no controversy over the amount, or that the material went into the construction of the building, and that due steps had been taken for its enforcement against the house and lot. Nor was it denied that the other defendants, the Cases Avenue Bank, its trustee and the present holder of the notes hereafter referred to, held under a deed of trust placed upon the property while the work of construction of the house was in progress.
The first proposition for consideration is the fact of agency of the husband for his wife in the erection of the building.
It appears that the husband contracted in writing and in his own name, with Wahlbrink on June 10th, 1909, for the erection of this building on a lot owned by his wife, and the contractor thereupon entered upon the work of construction. Mr. Eicks had some money on hand at the time but not sufficient to complete the building. Apparently toward the close of August, 1909, he had drawn practically all of his money out of the Cases Avenue Bank, where he kept his deposit, and on August 31st, 1909, he executed his individual note to that bank apparently for $3800, discounting this for $3686, that arc oust then being placed to his credit with the bank. He appears to have used practically all of this amount in the completion of the house, paying the larger part of it to Wahlbrink direct, some of it to parties who it seems had done work or furnished material in the construction of the house. As collateral security for this individual note Mr. and Mrs. Eicks put up with the bank a deed of trust executed jointly by them on this lot, securing a principal note for $3800, payable three years after August 27th, and six semiannual interest notes. While Mrs. Eicks testified that she had not authorized her husband to build this house on her lot, and while both of them testified that she had objected to her husband building the house, it appears affirmatively that Mrs. Eicks knew that this money which had been borrowed by her husband was for the purpose of completing the erection of the house on her lot; that she was on the premises, she and her husband living on the lot adjoining it, many times during the course of the erection of the building; in short, knew that the building was being constructed on this lot for the purpose of occupancy by her and her husband as a family residence. It does not appear that the husband had any interest in the lot, so as a matter of law when the building was erected it was of the property of the Wife, nothing appearing to the contrary. Nor does it appear that the objection of Mrs. Eicks to the location of the building was ever made to any one other than her husband.
The wife testified that she "did not bother" about the details of the construction of the house; that she knew after it was started that it was on her land and that it was also to be a home for her afterwards; that she "never bothered" about the details of the building; knew that the building was to be for their common use and dwelling. She went with her husband to tie bank to sign the notes and deed of trust, knowing that they were to be used to raise money to finish the building. Her husband told her that as the purpose for which he was raising the money and she made for objection to pledging her property, this house and lot, the title in her name, to the bank to raise this money; that she let her husband take the money from the bank to complete the building she saw was going up next door to their home; that she signed tare deed of trust at her husband's request and was willing to do it at the time and knew that the house was to be her home, but as to any arrangement of detail in respect to the house or its building, she had nothing to do. Asked if she had ever gone down to pick out things for the house, she answered that she went down town with her husband once when he selected the mantels because he asked her to go along with him; her husband asked her if she would go, she said she would, and went with him. Asked if she knew what this house was being built for and for what purpose, she answered:
The trial court seems to lave given conflicting instructions on this matter of agency, one apparently making it a matter of law, another as a matter of fact for the determination of the jury. This itself was reversible error.
While on the facts before the court in that case this is obiter, we hold it applicable here. On the facts here in evidence and which we have summarized, it is clear, as a matter of law, that the wife is estopped from denying the agency of her husband in the erection of the house and that she thereby bound her property for the value of this material which went into the construction of the house. So we held when this case was first argued and submitted.
The remaining proposition turns on the question of estoppel, raised by defendants, respondents here, and on which proposition we granted the rehearing, we having held that on the facts in evidence, the question of estoppel was for the jury.
The estoppel pleaded is failure of plaintiff to advise Mr. Eicks, the defendant who had contracted with Wahlbrink, that Wahlbrink owed it for material that went into the construction of the house; that the plaintiff, by its silence...
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