Denniston & Partridge Co. v. Brown

• Decision Date: 04 April 1918
• Docket Number: 31841
• Citation: 167 N.W. 190,183 Iowa 398
• Parties: DENNISTON & PARTRIDGE COMPANY, Appellant, v. VIOLA BROWN et al., Appellees
• Court: Iowa Supreme Court

167 N.W. 190

183 Iowa 398

DENNISTON & PARTRIDGE COMPANY, Appellant, v. VIOLA BROWN et al., Appellees

No. 31841

Supreme Court of Iowa, Des Moines

April 4, 1918

Appeal from Jasper District Court.--JOHN F. TALBOTT, Judge.

ACTION to enforce a mechanics' lien. The district court dismissed plaintiff's petition. Plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

Tim J Campbell, for appellant.

A. D Pugh and Ross R. Mowry, for appellees.

GAYNOR J. PRESTON, C. J., LADD and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

This action is to foreclose a mechanics' lien on certain property owned by the defendants jointly. The defendants Alice and Elizabeth Sherbon are minors. The defendant Viola G. Brown is the widow, and the other defendants are heirs direct, of one James Brown, deceased, who, at the time of his death, was the owner of this property. The widow, Viola G. Brown, owns a one third, and the other heirs, the other two thirds in common. Prior to the furnishing of the material involved in this suit, the widow and these heirs rented the property in question to a corporation known as the Victoria Sanitorium. This corporation took possession of this property, and one of these heirs or owners, to wit, Florence E. Sherbon, became and was its secretary, treasurer, and manager, had general charge of its business, and was in possession and control of the property for the corporation. She testified:

"My mother and sister were in California. The other children are minors. My mother and my sister left matters in my charge, both as to the Brown estate and the Victoria. The improvements and repairs were made by the Sanitorium under the lease from the Brown heirs (the defendants), and the arrangement was that the Sanitorium was to make the repairs and improvements."

While so in possession of the property, she employed one Charles Nelson to erect certain buildings on it, and was present when the buildings were put up. The material furnished for these buildings was purchased from the plaintiff by Nelson, and was used in the construction of the buildings. The buildings consisted of a barn, with a foundation under it, a "lean-to" to the kitchen, and a chicken yard. The material furnished by the plaintiff for these structures was charged by it on its books to the Victoria Sanitorium. The material, however, was used in making these permanent improvements upon defendants' land, with consent of the owners. Miss Florence Sherbon, called in this record Dr. Sherbon, was present, and saw the buildings constructed. Her sister, Mrs. Made A. Brown, was present part of the time.

There is no question in this record that Florence Sherbon made the contract with Nelson for these improvements upon this particular property. There is no question that the plaintiff furnished the material that went into the improvements. It does not appear affirmatively for whom Florence Sherbon acted, in making her contract with Nelson for these improvements. She was one of the owners of the property. It had been leased to the Victoria Sanitorium. The Victoria Sanitorium was in possession under the lease. Florence Sherbon was its secretary, treasurer, and manager. It appears that the plaintiff had a running account with the Victoria Sanitorium, and that, after these goods were purchased by Nelson for these structures, the material was charged to the Victoria Sanitorium. The lease under which the Victoria Sanitorium held possession of the property is not in the record. It was made by these defendants to the Sanitorium Company. The evidence is that these improvements were to be made by the Sanitorium Company under the lease, under some arrangement with defendants, and that the arrangement was that the Sanitorium Company was to make repairs and improvements. It does appear from the testimony of Florence Sherbon that at least her mother and her sister left her in charge, in a general way, both of this property, which is called the Brown estate, and of the Victoria Sanitorium; that she was in possession with their authority, and with authority from them to take charge, in a general way, of the property; that, while she was in possession, she ordered these permanent improvements to be made; that, when they learned of these improvements, they made no objection to her action in placing them upon the property.

As to these other defendants, the minors, Alice and Elizabeth there is no showing in this record that they had a guardian, or were represented by a guardian in any of the transactions here involved. In the absence of any showing of authority to bind them, we cannot assume that they are bound by any matters involved in the right to enforce a claim against their estate, such as is sought to be enforced here. As to these minor defendants, we think the plaintiff has made no showing entitling it to the foreclosure of any lien as against their interest. But as to these adult heirs (defendants), a different question arises. They entered into a contract with this Sanitorium Company by which they gave the Sanitorium Company possession of these premises, under...