Foskett & Bishop Co. v. Swayne
| Decision Date | 30 November 1897 |
| Citation | 70 Conn. 74,38 A. 893 |
| Court | Connecticut Supreme Court |
| Parties | FOSKETT & BISHOP CO. v. SWAYNE et al. |
Appeal from superior court, New Haven county; Silas A. Robinson, Judge.
Suit by the Foskett & Bishop Company against Walter S. Swayne and others for damages, and to foreclose a mechanic's lien. The case was tried to the court, by whom a judgment of nonsuit was rendered as to the defendant Sarah Swayne, and plain-tiffs appeal for alleged errors of the court in refusing to set aside said judgment. Error and nonsuit set aside.
Prentice W. Chase and James Elliott, for appellants.
James Kingsley Blake, for appellee the New Milford Sav. Bank. Richard H. Tyner, for appellee Sarah Swayne.
Any court is authorized by section 1109 of the General Statutes to grant a motion for a judgment as in case of a nonsuit if, in its opinion, the plaintiff has failed to make out a prima facie case. In Booth v. Hart, 43 Conn. 480, this court said: "In cases tried to the jury, we have established the rule that if there is substantial evidence produced by the plaintiff in support of his cause which should be weighed and considered by the jury a nonsuit ought not to be granted; and we think the same rule should be applied in cases tried by the court." This rule has been elaborated and applied in later cases. Cook v. Morris, 66 Conn. 210, 33 Atl. 994; Thames Steamboat Co. v. Housatonic R. Co., 24 Conn. 49; Town of Canton v. Town of Burlington, 58 Conn. 279, 20 Atl. 602.
It appears that the land sought to be foreclosed belonged to the defendant Sarah Swayne, to her sole use, and that she is the wife of Walter S. Swayne. The plaintiffs had furnished materials and rendered services in the construction of a house which stood on that land. They were entitled to have a judgment to foreclose the lien on her land provided the materials so furnished and the services so rendered were furnished and rendered by virtue of an agreement with her, or by her consent, or by an agreement with or the consent of some person having authority from or rightfully acting for her. Gen. St. § 3018. What constitutes consent, within the meaning of this statute, is discussed in Huntley v. Holt, 58 Conn. 449, 20 Atl. 469, and Lyon v. Champion, 62 Conn. 75-78, 25 Atl. 392. Now, it seems to us that there was evidence given by the plaintiffs from which the court might fairly have found that the defendant Sarah had given her consent to the furnishing of the materials and the rendering of the services by the plaintiffs. The evidence should be...
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