Cattell v. Fergusson

• Decision Date: 18 January 1892
• Citation: 3 Wash. 541,28 P. 750
• Parties: CATTELL ET AL. v. FERGUSSON.
• Court: Washington Supreme Court

28 P. 750

3 Wash. 541

CATTELL ET AL. v. FERGUSSON.

Supreme Court of Washington

January 18, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by N. J. Cattell and John Scott against Emily Fergusson to foreclose a mechanic's lien. Judgment for plaintiffs. Defendant appeals. Affirmed.

Cole, Blaine & De Vries, for appellant.

Wiley, Hale & Scott, for respondents.

SCOTT J.

This action was brought to foreclose a mechanic's lien. The respondents entered into a written contract with one John C Fergusson to erect a building upon certain real estate which the pleadings admit belonged to the appellant. Said John C Fergusson and the appellant were husband and wife, and the respondents claim that he was also her agent and acting for her in the premises. The appellant claims there was no proof of such agency. The evidence shows that the contract was entered into September 21, 1889. Prior thereto, on the 12th of said month, the appellant and her said husband obtained a loan of $1,350 from the Charles F. Emery Real-Estate Company, and they executed to said company a mortgage upon certain lands, including the real estate in question, which mortgage was given as security for such loan, and also to secure the performance of a contract entered into between the parties to said mortgage, in which contract the appellant and her husband bound themselves to make improvements on said lands to cost not less than $2,500. This much appears by a reference to such contract in the mortgage, but the contract itself is not in the record. The erection of this building was evidently in contemplation when the mortgage was made, for Mr. Cattell, one of the respondents, testified that he knew of the transaction in relation to the borrowing of the money, and that John C. Fergusson told him they were getting it for the purpose of putting up this building. Upon cross-examination this witness was shown a paper by appellant's counsel, which he admitted having seen in Mr. Fergusson's office. He was asked if it was given for the purpose of getting the loan, and answered: "No; that, as I understand it, is a bond to secure Mr. Emery against a certain amount of liens that I bound myself to see that everything was paid outside of myself, and I could not bind myself to that." He also testified to his partner's signature thereto. This instrument was then offered in evidence by the appellant. Counsel for respondents objected, because they had not closed their case in chief, saying it would be proper for the appellant to introduce it after they got through. The court said: "He can introduce it now, and we can identify it." Counsel for appellant then said, "I offer it for identification;" whereupon it was "marked by the court for identification." This instrument is not in the record, and no other or further disposition appears to have been made of it. Up to the time that the respondents rested their case there was no proof upon which the claim of agency could stand. The land against which the lien was sought to be enforced was admitted to be the separate property of the appellant. The statement of Fergusson that they were getting the money for the purpose of putting up the building cannot be held sufficient to support the agency. No act upon the part of Mrs. Fergusson beyond the giving of the mortgage aforesaid was proven. It was not shown that she had any knowledge of the contract or of the work being done. There is nothing to show that she was in that vicinity at or about the time, except it appears that she executed the mortgage there in person on September 12th, aforesaid, and she verified her separate answer in the cause there in July following. The work had ceased some months before this time. While less proof would probably suffice to establish the agency of the husband in such matters than where the relationship of husband and wife does not exist, yet it must be something more than the proof offered here, and the defendant's motion for a nonsuit, which he made at the...