Henry Evers Mfg. Co. v. Grant

• Decision Date: 04 May 1926
• Docket Number: No. 19350.,19350.
• Parties: HENRY EVERS MFG. CO. v. GRANT et al
• Court: Missouri Court of Appeals

284 S.W. 525

HENRY EVERS MFG. CO. v. GRANT et al

No. 19350.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Rehearing Denied June 1, 1926.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by the Henry Evers Manufacturing Company against Barton N. Grant and another. Judgment for plaintiff, and defendant Grace F. Grant appeals. Affirmed.

Robert T. Burch, of St. Louis, for appellant.

Prank J. Quinn, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover the value of material sold by plaintiff to defendant Gauer and used by him in the construction of a dwelling house on the real estate of the defendant Grace F. Grant, under a contract with her husband, defendant Barton N. Grant, and to establish and enforce a mechanic's lien against said real estate and the building erected thereon. The petition, setting up the mechanic's lien and describing the real estate and building erected thereon, was filed on April 19, 1923. The lien account, which was for the sum of $1,249.92, was tiled on February 17, 1923. The cause was tried to a jury, there was a verdict in favor of plaintiff against the defendant' Gauer finding the amount due plaintiff from Gauer was the sum of $1,249.92 and interest, with the further finding that plaintiff was entitled to a mechanic's lien against the property described in the petition, and judgment was given accordingly. The defendant Grace F. Grant appeals.

The contract for the erection of the building was made with Gauer by Barton N. Grant in his own name. The material used in the erection of the building was purchased by Gauer from plaintiff. The aggregate cost of the material and labor used in the building was approximately $7,600. The defendant Barton N. Grant, testifying for the defendants, stated that he made payments to Gauer and workmen employed on the building aggregating about $5,200; that the payments were made by checks; and that this was the aggregate amount paid by him as shown by the canceled checks. .The checks were not in evidence. Material to the amount of $1,249.92, purchased by Gauer from the plaintiff, was never paid for, and it is for this amount that the lien account was filed and this suit was brought.

Appellant contends that there was no evidence to show that her husband, who contracted with Gauer for the erection of the building on her real estate, was her agent, so as to warrant the charging of a mechanic's lien against her said real estate and the building erected thereon.

The provisions of section 7216 of the Revised Statutes of 1919 are pertinent, as follows:

"Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this article, shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or if such building, erection or improvement be upon any lot of land in any town, city or village, then such lien shall be upon such building, erection or improvements, and the lot or land upon which the same are situated, to secure the payment for such work or labor done, or materials, fixtures, engine, boiler or machinery furnished as aforesaid." (Italics are ours.)

We do not understand the cases to hold, as apparently urged by appellant's counsel, that, in order to warrant the establishment of a mechanic's lien against the real estate of the wife for a building or other improvement erected upon such real estate under contract with the husband, the evidence must show that the wife constituted her husband as her agent to enter into the contract for the erection of the building or improvement so as to bind her personally to pay for same, but we understand the cases to hold that it is essential only to show such an arrangement or agreement between the husband and the wife, or facts and circumstances from which such an arrangement or agreement may be inferred, so as to constitute the husband the agent of the wife in the limited sense of the word "agent" as used in the statute.

In Ward v. Nolde, 259 Mo. 285, loc. cit. 298, 168 S. W. 596, 599, our Supreme Court, having under review the section of the statute above set out, said:

"Appellant insists that the `agent' mentioned in the statute must be a person whose agency is sufficient in its scope to bind the owner personally for the price of the labor or materials furnished. We are unable to agree with this contention. The purpose of the Mechanic's Lien Act is not to create a personal indebtedness not otherwise existing, but its sole purpose is to provide a lien under the conditions enumerated. If the facts in any case would show that the alleged agent, in fact, had the power to bind the owner personally for the cost of the work, then there would, of course, be little doubt but that the lien right would follow, for such a situation would be little different from that in which the owner contracted direct with the person furnishing the work and material. However, we do not think a fair interpretation of the act to be that the agency therein mentioned should be that wide in its scope before the lien is created. For, if that be the meaning of the act, then the word `agent' might well be treated as surplusage and discarded because an act done with a fully authorized agent is the same in law as an act done with the principal. We therefore conclude that the `agent' mentioned in the statute may be a person with such limited authority as to be unable to bind his principal personally for the work, but who, at the same time, by an exercise of the limited authority given, will transmit to the person furnishing the materials a right to a lien upon the owner's premises. Such a relationship is very similar to the agency of the contractor who contracts direct with the owner to do the work. The contractor has not the power to let subcontracts so as to bind the owner personally to pay the subcontractors, yet he has such authority of agency as when exercised will give to the materialman or subcontractor the right to a lien on the owner's realty, for the reasonable value of the labor and material used, provided the labor and material be such as are contemplated by the contract."

It seems, however, under the authorities, that mere knowledge on the part of the wife that a building or other improvement is being erected on her real estate, and passive acquiescence therein on her part, is insufficient in itself to show that the husband was the agent of the wife so as to either bind her personally or to warrant the charging of a lien on her real estate for the cost of the building or improvement. In this case, however, something more appears than mere passive acquiescence on the part of the wife. That the appellant was the owner of the lot on which the building was erected and for which the material sued for was furnished is conceded. It appears that the building was erected for the purpose of a home for the husband and the wife and their family. The testimony of the husband, who was produced as a witness on behalf of the defendants, shows that the wife knew that the building was being erected on her lot; that he talked to her about the erection of the building before the contract for its erection was entered into by him with Gauer; that he told her he was going to erect the building and consulted with her...