Carpenter v. Leonard

• Decision Date: 01 January 1860
• Citation: 5 Minn. 119
• Parties: WARREN CARPENTER AND WIFE vs. CHARLES LEONARD.
• Court: Minnesota Supreme Court

Page 119

5 Minn. 119

WARREN CARPENTER AND WIFE vs. CHARLES LEONARD.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

Points and authorities for plaintiffs: —

1. Said action is predicated upon a mechanics' lien, and is not an equitable proceeding to charge the separate property of Mrs. Carpenter, and can only be supported under a valid agreement, upon which an action at law can be sustained.

2. The pleadings and referee's report show that the alleged agreement was made with Warren Carpenter before Mrs. Carpenter had acquired any interest in the property;

that plaintiff below relied upon the promise of payment, and not upon the separate property of the wife.

3. The husband cannot bind the wife by verbal contract, as her agent, or by any promise made in her presence, as she, in the latter case, will be presumed to be acting under coercive or undue influence. 13 Met. 149, 153.

4. The wife's separate estate cannot be charged in equity unless sole credit is given on the faith thereof. Therefore, as the pleadings show she had not acquired the property attempted to be charged, when the alleged agreement was made, and also that the note of Warren Carpenter was taken for the amount, it is clear the separate property of the wife was not solely pledged. 4 N. Y. 1.

5. An agreement or existing contract of a married woman will not form the predicate for a statutory lien. The real estate of the wife can only be encumbered by deed executed according to the provisions and under the guards provided by statute.

6. The separate note of Warren Carpenter for part, and the joint note of Carpenter and wife, being taken for the account, extinguishes the lien if any ever existed, and the sole remedy of the party is upon the notes as taken. Booth v. Smith, 3 Wend. 66; New York State Bank v. Fletcher, 5 Wend. 85.

7. The written admission of the defendant, agreeing to take the note as payment, cannot be contradicted by parol. Fols. 143 and 144.

8. The notes taken by defendant, extended the time of payment at an increased rate of interest over that stipulated or implied by law under the original verbal agreement, and as these notes were not due until demanded, the original demand was suspended; and as the notes are not sued upon so as to make the commencement of the action a demand, and no demand being proved, no action could be sustained upon the original account; and therefore the judgment is erroneous.

9. The referee erred in striking out the evidence of payment by way of rent, as shown in Fols. 85 and 86.

10. The complaint does not allege what proportion of the work and labor was done upon the property owned by said Maria, neither is there anything in the evidence or referee's report showing any particular amount of work or labor upon her property. Yet the referee charges the separate property of Maria with the improvement of Stinson's property under the claim that her separate property is enhanced in value by reason of the other improvement. 8 N. Y. 383.

11. The plaintiff below must assert his lien upon the buildings erected on Stinson's property, and can have no lien upon the property of Maria Carpenter for mere speculation benefits. The court therefore erred in giving judgment upon said report.

Points and authorities for defendant: —

1. The action is not especially predicated on a mechanics' lien, but is equally an equitable action against the separate estate of the wife. All the allegations necessary for either are found in the complaint, and the facts found by the referee would also support either demand. Either ground is "consistent with the case made by the complaint, and embraced in the issue." Pub. Stat. 554, § 169.

2. The taking of notes of Maria and Warren Carpenter would not extinguish the lien. Milwain v. Sanford, 3 Minn. [147]; besides, the referee has expressly found that the notes were not taken as payment.

3. The objection now first made, that no demand for payment of the notes was made, and therefore the action is premature, is plainly frivolous. If the defendants had any such defense they should have plead the want of any demand. It would be time enough then to call upon the plaintiff to prove a demand, even were not the point frivolous in itself.

4. The referee did not err in striking out the evidence as to payment by way of rent. It was not plead as a payment by the defendant Maria, but as a counter claim existing in favor of the defendant Warren. The action then being solely against the estate of Maria, and the defendant Warren being a mere technical party as husband of Maria, evidence of a counter claim in his favor is not admissible. It is "res inter alios."

5. It was not necessary for the referee to find what amount of work was done on the main building, and what on the outbuildings. The outbuildings were "appurtenances." Comp. Stat. 696, Act of 1858. The case of McDermott v. Palmer, 8 N. Y. 383, has no effect. In that case it was merely decided that a lien given for work done towards the "erection, construction, or furnishing, of buildings, does not apply to the flagging of sidewalks, yards and areas of buildings in process of erection." In the New York statute nothing was said about "appurtenances," and the court in their opinion in that very case say that had the word "appurtenances" been inserted in the act giving the lien (as it was in subsequent acts), the plaintiff would probably have had a lien for the flagging, etc. 8 N. Y. 387.

6. The plaintiff is entitled to a judgment both on equitable and legal grounds. (a) On equitable, because the work was done on the credit of and directly for the benefit and improvement of the separate estate, and therefore it is liable. Yale v. Dederer, 18 N. Y. 265, and 22 N. Y. 450. The consideration was obtained for the direct benefit of the estate, and it was always held "that married women were regarded as femes sole in respect to their separate property, and were, as to such property, liable on their contracts respecting the same, to the same extent as though they were not under the disability of coverture." Bell on Husband and Wife; Jaques v. M. E. Church, 17 Johns. 548. This case definitely decided, that as regarded her separate estate a married woman had full power to contract, the same as if she were a feme sole; that even when the manner in which she could contract was expressed in the instrument conferring her estate, as where it contained a power to alien by deed, that did not prevent her from contracting in any other manner, and that if it was desired to limit her power of contracting to a particular manner, it could only be done by express negative words. (b) It is also equally liable on legal grounds, because the statute enabling her to hold the real estate as a feme sole necessarily gave her power to contract with respect to it, and having power to contract for the improvement of the estate, the statute of liens gives the lien.

The judgment should be affirmed.

Smith & Gilman, for plaintiffs.

Allis & Peckham, for defendant.

ATWATER, J.

Charles Leonard, the plaintiff below, brought an action in the district court of Ramsey County, against Warren Carpenter and Maria Carpenter, his wife, to recover the sum of $884.84 for services alleged to have been performed in building and repairing buildings, on the separate estate of Maria Carpenter, and seeks to enforce the collection of his demand upon the said separate property of the defendant Maria Carpenter. The complaint alleges that most of the work was done on a hotel situated on land the separate estate of the defendant Maria Carpenter, that some of it was done on a stable and outbuildings situated across the street from the said hotel, and built and used as appurtenant to it, as outhouses and stable for the said hotel, and for the purpose of adding to the value and convenience of said hotel, but not standing on land owned by defendant Maria Carpenter. The answer denied some of the allegations of the complaint, and set up counter claims and offsets. The plaintiff replied to the new matter in the answer; and the cause was referred to James Gilfillan, Esq. to hear and decide, who reported a judgment for plaintiff; upon which defendants below sued out a writ of error.

The facts found by the referee are substantially as follows, viz.: That since the 20th of August, 1858, the defendant Maria Carpenter had been the owner in fee, in her own right, and separate and apart from her husband, of a certain parcel of land upon which stood the hotel mentioned in the complaint, and that during all that time the defendants had been husband and wife. That on or about the first day of August, 1858, the defendant Maria, then contemplating the purchase of said land, employed the plaintiff below to do certain work on said land for its improvement, and agreed to pay him; that in pursuance of said agreement, said plaintiff did work on said premises. That on the 6th of November, 1858, plaintiff below and said defendant Maria Carpenter had an accounting as to the amount due, and the sum of $404 was found due, for which sum both defendants gave their promissory note payable on demand. That afterward the plaintiff continued to work pursuant to said agreement till about the 29th of October, 1859, when the plaintiff below and the defendant Maria had another accounting, and there was found due the plaintiff the further sum of $480.73, for which both defendants made their certain other promissory note payable on demand. That said notes were not taken by plaintiff as payment, that the plaintiff is owner of the same, and the same are unpaid. That the work and labor done and performed as aforesaid, was done in the construction and repairing of a certain dwelling house situated on the said real estate, in fitting the same to be used as a hotel and boarding house, and also in constructing a small dwelling house, stable, and building designed to be used as a bowling alley, and lodging house, on land...