Kansas City Planing Mill Co. v. Brundage

• Decision Date: 28 March 1887
• Citation: 25 Mo.App. 268
• Parties: THE KANSAS CITY PLANING MILL COMPANY, Respondent, v. AMELIA BRUNDAGE AND HUSBAND, Appellants.
• Court: Kansas Court of Appeals

25 Mo.App. 268

THE KANSAS CITY PLANING MILL COMPANY, Respondent, v. AMELIA BRUNDAGE AND HUSBAND, Appellants.

Court of Appeals of Missouri, Kansas City.

March 28, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Reversed and remanded with directions.

The case is stated in the opinion.

SCAMMON & STUBENRAUCH, for the appellants.

I. The court erred in refusing to give the instruction in the nature of a demurrer to the evidence. It was needful in order to establish a lien against the property of the Brundages that a contractual relation should be shown to exist between Mrs Brundage, the owner, and Moore Brothers, the contractors. Horton v. Railroad, 84 Mo. 602; Henry v Rice, 18 Mo.App. 497; Garnett v. Berry, 3 Mo.App. 105. And any sub-contractor or material man, as in this case, is presumed to have notice of the terms of such contract. The law charges him with a knowledge of the basis upon which the contractor is related to the work to be constructed. Stewart v. Wright, 52 Iowa 335; Garnett v. Berry, supra; Scott v. Cook, 8 Mo.App. 193; Bowen v. Aubrey, 22 Col. 566. The evidence, under the authorities cited, showed conclusively that there was neither a contract, nor evidence tending to prove a contract, with Mrs. Brundage. Therefore, the demurrer to the evidence should have been sustained.

II. The finding of the court was against the instructions given by the court, and against the evidence. In instruction number five the court declared the law to be, that before there could be a finding that the contract for building offered in evidence was for the use of Mrs. Brundage and in her behalf, it must appear that the contract was made by her authority, or by some one professing to act in her behalf. Now, the record shows there was simply no evidence that W. H. Brundage professed to make the contract by her authority, or in her behalf, or that she even authorized it. The only evidence on the point is that in denial of the hypothesis upon which the instruction was based. Hence the finding of the court in this regard was not only against the instruction, but against the evidence also. That judgment went against Moore Brothers, the contractors, we do not complain, but as to the defendants, Brundage and wife, we submit the finding of the court below and its judgment should be reversed.

E. P. MCDONALD, for the respondent.

I. A husband's agency may be implied by the conduct of his wife, unless otherwise provided by positive enactment. Phillips on Mechanic's Liens (2 Ed.) sect. 104; Barker v. Berry, 8 Mo.App. 450.

II. A contractual relation between Mrs. Brundage, the owner, and Moore Brothers, contractors, sufficiently appears. Burgwald v. Weippert, 49 Mo. 60; Collins v. McGraw, 47 Mo. 495; Tucker v. Gest, 46 Mo. 339; McCormick v. Lawton, 3 Neb. 449; Schwartz v. Saunders, 46 Ill. 18; Greenleaf v. Beebe, 80 Ill. 522; Littlejohn v. Millirons, 7 Ind. 125; Johnson v. Tutewiler, 35 Ind. 353; Forrester v. Preston, 2 Pitts. 298; Ex parte Schmidt, 52 Ala. 256; Warren v. Smith, 44 Tex. 247; Schmidt v. Wright, 6 Mo.App. 601; Barker v. Berry, 4 Mo.App. 585.

III. The court did not err in refusing to give the instruction in the nature of a demurrer to the evidence. Smith v. Wright, 6 Mo.App. 601; Barker v. Berry, 4 Mo.App. 585; Leisse v. Schwartz, 6 Mo.App. 415; Collins v. McGraw, 47 Mo. 495.

IV. The finding of the court was not against the instructions given by the court and against the evidence. The judgment was for the right party and this court will not reverse.

PHILIPS P. J.

This is an action to enforce a mechanic's lien, for materials furnished by plaintiff in the construction of a building on a lot owned by defendant, Amelia Brundage. The contract for the building was made between W. H. Brundage, the husband of said Amelia, in his own name, as owner of the property, and Moore Brothers as contractors.

The contract was reduced to writing. The cost of the building was to be $6,560, to be paid by W. H. Brundage. The plaintiff furnished lumber for said building; and it filed a mechanic's lien on the lot to secure a balance of account amounting to $356.70. The contract price for the building was paid by W. H. Brundage.

The plaintiff obtained judgment, enforcing the lien against the property of Mrs. Brundage, and to reverse this judgment she prosecutes this appeal.

I. The very foundation of the mechanic's right to such lien is the existence of a contract for the work and materials with the owner of the property to be improved. Unless the owner, by himself or his authorized agent, has contracted for the material and work no lien can attach to his or her property. Rev. Stat., sect. 3172; Henry v. Rice, 18 Mo.App. 510; Barker v. Berry, 8 Mo.App. 446. The sub-contractor can occupy no better situation, in this respect, than the original contractor. Henry v. Rice, supra.

Mrs. Brundage being admitted the owner of the land on which the building was erected, it devolved upon the plaintiff to show a contract made with her, or her agent for her, for the work and materials. The only contract put in evidence was between W. H. Brundage as the owner, and Moore Brothers, as contractors. It was reduced to writing. Mrs. Brundage was not a party to it. It does not purport on its face to be made in her behalf, or for her use and benefit, nor by W. H. Brundage as her agent. It was his personal undertaking, and shows that the contractors looked to him for pay. It is the accepted rule of law that an action to enforce a lien can only be brought against the debtor. Lauer v. Bandow, 43 Wis. 559. The only way, therefore, in which the plaintiff could hold Mrs. Brundage's property bound for this undertaking of her husband, was to show, by satisfactory proof, that in executing the contract he was acting, in fact, as her agent, and not for himself.

II. It is mere meaningless rhetoric to talk about an implied obligation upon Mrs. Brundage to pay for the improvement on her property, because it was her home. It is a matter of surprise that even learned judges sometimes speak of an implied contract in a case like this. The law never implies a promise where there is an express promise. Whiting v. Sullivan, 7 Mass. 173; Suits v. Taylor, 20 Mo.App. 166. " Promises in law exist only in the absence of express promises." 1 Chitty Cont. 89. " Where there is an express promise, the law does not raise an implied one in reference to the same matter; for expressum facit cessare tacitum. " 2 Steph. Com. 112.

The separate opinion of Chief Justice Ryan, in Lauer v. Bandow (supra ), with characteristic force and perspicuity, demonstrates the legal absurdity of applying the rules affecting implied contracts to a case like this, where there is an express written contract. While recognizing the general doctrine that, where an agent makes a contract in his own name his principal may be held upon parol proof that the contract was in fact for the principal, he says: " I think it would be dangerous to apply this rule to the husband's contract in his own name, to charge the separate estate of the wife, as his principal. Be this as it may, the rule is limited by the relation of principal and agent. In other cases, the rule excludes implied contracts where express contracts appear. There appear to be cases in which the law implies contracts not really presumed to have been made. These go upon existing legal obligations, etc. But generally the law does not make contracts for parties, but only enforces contracts which they make for themselves. * * * If it appear that the service was rendered, or the goods delivered, upon the express promise of another to pay for them, the law will not generally imply such a promise by him who receives them. * * * One may well build upon the land of another, to discharge a debt, or voluntarily, by way of gift, or for some advantage of his own, or by mistake of title. But in either case, when this is done by express contract, to which the owner of the land is not a party, neither he nor his land will be charged by the contract, though he derive benefit from it. Davis v. School District, 24 Me. 349; Wells v. Banister, 4 Mass. 514. One may well gain by the contract of another, to which he is not a party; but the law will not imply his promise to pay for this gain which comes incidentally to him."

III. Equally violative of a well established rule of law is it to speak, as some judges have, of ratifying such a contract as this. They speak of certain acts and declarations of the wife evidencing an " adoption," or " ratification," of the contract made by the husband. A ratification is an agreement to adopt an act performed by another for us. Bouv. Dic. It applies only " where a person acting as agent for another professes, though without authority, to contract for him." Chitty Cont. 23-24.

So Story on Agency, 251 a. says: " One other consideration is important to be borne in mind. It is that a ratification can only be effectual between the parties, when the act is done by the agent avowedly for, or on account of, the principal, and not when it is done for, or on account of, the agent himself, or of some third person. This would seem to be an obvious deduction from the very nature of a ratification, which pre-supposes the act to be done for another, but without competent authority from him; and, therefore, gives the same effect to the act as if it had been done by the authority of the party for whom it purported to have been done, and as his own act."

Hence followed the ruling of Holroys, J., in Saunderson v Griffith (5 B. & C. 909-915): In an action by A and his wife, and B, the declaration averred...