Engfer v. Roemer

• Decision Date: 28 February 1888
• Citation: 71 Wis. 11,36 N.W. 618
• Parties: ENGFER v. ROEMER.
• Court: Wisconsin Supreme Court

71 Wis. 11

36 N.W. 618

ENGFER

v.ROEMER.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from Milwaukee county court.

This was an action by John Engfer to foreclose a mechanic's lien for the repair and erection of buildings upon the property of the appellant, Phillipine Roemer.C. M. Bice, for appellant.

Thompson & Schoat, for respondent.

COLE, C. J.

There is no serious controversy as to the repairs upon the house. The defendant admits in her answer that through her tenant, Kohlman, she entered into an agreement with the plaintiff to take out the front of the old building, and put in place thereof a new front; to take down the partition in the building, and put in place thereof a wooden partition; put up shelves, and make stairs in front; for which she agreed to pay what these repairs were reasonably worth. She further alleged that the plaintiff presented to her a bill of $40 for this work, which she has paid. The payment of the $40 is not disputed, but the plaintiff claims it is not what the work was worth, and the jury found, in answer to the fifth question submitted, that the work done and materials furnished by the plaintiff, exclusive of the barn, were reasonably worth $52. To the extent of the unpaid balance found to be due for this work, if any, the plaintiff's right to a lien would seem to be indisputable. The contract for it was made by the tenant, who was authorized by the defendant to make it, and she is clearly bound by it. The real controversy in the case is in reference to the barn which plaintiff built upon the lot. This barn the defendant claims was built without her authority, knowledge, or consent,for the convenience of the tenant, and that she is not liable to pay for it. It is true, the defendant owned the lot upon which the barn was built, but it is obvious that that fact alone would not render the premises subject to a lien, if the barn was put upon them without her authority, knowledge, or consent. A person cannot obtain a lien upon the premises of another unless the work was done by the authority, knowledge, or assent of the owner. This proposition is too plain for argument. There was no direct authority to shown on the part of the defendant for building the barn. The tenant, Kohlman, made the contract with the plaintiff for putting it up, but he does not pretend that he was authorized by the defendant to have the work done. The question then is, upon what ground can the premises be subject to a lien for its payment? In answer to the first question, the jury found, in effect, that the plaintiff built the barn at defendant's instance and request; also, in answer to the sixth, that the barn was built with her knowledge and assent at the time, or that she accepted and approved of the job when done. If there were evidence to support these findings, the case would be measurably free from difficulty. Of course, if the defendant requested the plaintiff to put up the barn, the law would imply a promise to pay for it; or, if she assented to it at the time, and accepted and approved of the work when done, this, perhaps, might be deemed a ratification of the acts of her agent, and would bind her. But there is really no affirmative evidence that the defendant authorized the barn to be built, or that she even knew of its construction until after it was erected, or that she ever accepted and agreed to pay for it. We are inclined to think the jury must have reached the conclusions they did upon these points because of certain things in the charge of the learned county court which were well calculated to mislead. There was evidence which tended to prove that the plaintiff, after he completed the repairs upon the house, and built the...