Kuenzel v. Stevens
| Decision Date | 15 March 1900 |
| Citation | 56 S.W. 1076,155 Mo. 280 |
| Parties | KUENZEL v. STEVENS, Appellant |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Circuit court judgment affirmed.
Ashley Cabell, B. Schnurmacher and H. A. Loevy for appellant.
(1) The court erred in sustaining respondent's motion for new trial on the grounds that the verdict of no lien was against the evidence and also against the weight of the evidence because there was no evidence that Mrs. Stevens had any agent. Bank v. Bank, 130 Mo. 161; Garnett v Berry, 3 Mo.App. 187; Barker v. Berry, 8 Mo.App. 446; Bauman case, 55 Mo.App. 490; Thompson case, 60 Mo.App. 490; Duross case, 78 Mo.App. 265. And no evidence that she had any money of her own, or that if she had money, it was used to pay for the house. Bauman case, 55 Mo.App. 212; McDonnell case, 67 Mo.App. 408; Thompson case, 60 Mo.App. 491; Duross case, 78 Mo.App. 262. (2) The giving of directions by her is not sufficient to create or prove an agency, where the husband has contracted in writing in his own name. Bauman case, 55 Mo.App. 208. (3) To warrant a finding, in the face of the husband's express contract in his own behalf, that he acted as her agent, the evidence must be so clear, cogent and persuasive as to leave no reasonable doubt thereof. Eystra v. Capelle, 61 Mo. 478; Bank v. Bank, 130 Mo. 161; Bridges v. Russell, 30 Mo.App. 258; Bauman case, 44 Mo.App. 393; Thompson case, 60 Mo.App. 491; Mahner case, 70 Mo.App. 387. (4) A plaintiff can not recover on mere conjectures; there must be either direct proof or facts shown from which legitimate and logical inferences may be drawn. Smith v. Railroad, 37 Mo. 292; Breen v. Cooperage Co., 50 Mo.App. 214; Moore v. Railroad, 28 Mo.App. 622.
Rassieur & Buder for respondent.
(1) If a trial court is of the opinion that the verdict is against the weight of the evidence, it should never hesitate to grant a new trial. It is its plain duty to do so. Bank v. Wood, 124 Mo. 72; Van Liew v. Barrett, etc. Co., 144 Mo. 514; Reid v. Piedmont, etc., Co., 58 Mo. 430; Rickroad v. Martin, 43 Mo.App. 603; Cook v. Railroad, 56 Mo. 308. (2) On the other hand such action of the trial court will not be reversed by an appellate court unless the trial court has, in granting a new trial, acted arbitrarily or oppressively, or has been guilty of an injustice. Van Liew v. Barrett, etc. Co., 144 Mo. 515; Scott v. Smith, 133 Mo. 618; Miller v. Madison, 130 Mo. 529; Parker v. Cunningham, 130 Mo. 348; Bank v. Wood, 124 Mo. 77; McCullough v. Phoenix Ins. Co., 113 Mo. 619; Bank v. Armstrong, 92 Mo. 280; Eidemiller v. Kump, 61 Mo. 340; McKay v. Underwood, 47 Mo. 187. (3) Even then an appellate court will not interfere, unless it plainly appears that the action of the trial court in granting a new trial is subject to such an objection. Eidemiller v. Kump, 61 Mo. 340; Bank v. Armstrong, 92 Mo. 280; Parker v. Cunningham, 130 Mo. 350; Van Liew v. Barrett, etc. Co., 144 Mo. 515; Bank v. Wood, 124 Mo. 72. (4) A married woman can be held for the buildings on her land whenever she has contracted therefor, either directly or through an appointed agent. Garnett v. Berry, 3 Mo.App. 197; Carthage M. & W. L. Co. v. Bauman, 55 Mo.App. 204; Thompson v. Kehrmann, 60 Mo.App. 488; McDonnell v. Nicholson, 67 Mo.App. 408.
This is an appeal from an order of the St. Louis Circuit Court granting a new trial. The appeal was in the first instance taken to the St. Louis Court of Appeals, where the judgment of the circuit court was reversed, but one of the judges deeming the decision in conflict with that in First Nat. Bank v. Wood, 124 Mo. 72, 27 S.W. 554, the cause was certified to this court.
It is a suit to enforce a mechanic's lien against the real estate of defendant Phoebe G. Stevens for the value of materials furnished to the contractor, and used in the construction of a dwelling built upon her land in pursuance to a contract made by her husband with the contractor, upon the theory that the husband in making the contract, although doing so in his own name, was the agent of his wife. Upon the trial there was a verdict for the plaintiff against the contractor for the amount claimed, $ 449.36, but the verdict was for no lien against the property. The plaintiff moved to set aside the verdict of no lien, upon the ground that it was against the evidence and against the weight of the evidence; the court sustained the motion on both grounds, from which order Mrs. Stevens has prosecuted this appeal.
The only question for our consideration is in relation to the action of the circuit court in granting a new trial. The testimony showed the title to the land to be in Mrs. Stevens by deed of general warranty, dated September 3, 1894; that in October of that year her husband engaged the services of a firm of architects who prepared plans and specifications, in accordance with which, on the 20th of that month, a contract in writing was made for the construction of a dwelling on the land, which contract ran in the name of C. N. Stevens, who is the plaintiff's husband, as one party, and Nicholson Brothers, builders, as the other party, no reference to Mrs. Stevens nor to the ownership of the land being made in the contract. Plaintiff furnished to Nicholson Brothers the materials stated in the petition, which were used in the construction of the building, and the same not being paid for, a mechanic's lien in due form was filed, and notice given. The only controversy as to the facts with which we are concerned on this appeal, relates to the alleged agency of the husband.
Although he acted in his own name, yet if he was really acting by authority of his wife and causing the house to be built on her account, he was in legal contemplation her agent.
The testimony for plaintiff tended to show that Mrs. Stevens exercised a good deal of authority in the plans and construction of the building. Whether these acts of hers were by permission of her husband, and attributable to a wifely interest in her husband's affairs, or were from a conscious assertion of her own rights, the trial judge and jury had to decide from the circumstances. Mr. Stevens engaged the architects, and as between them nothing was said as to the ownership of the property, but before the drawings were concluded Mrs. Stevens saw the architects, discussed the plans and details, and gave them her views. When the contractors were ready to begin, she requested that the work of excavation wait until she arrived on the ground, as she desired to break the ground with the first shovelful of earth herself, and did so. She visited the plaintiff's planing mill, in company with her husband, to inspect the millwork that was to go into the house, found fault with some of it, and had it changed to suit her. She was at the building almost every day, criticized what she disliked, and had changes made; when her attention was drawn to a china closet and its details explained to her she expressed her disapproval, and said she would instruct the architect to change it, and it was done. Other changes were also made at her direction. Although Mr. Stevens was sometimes at the building with his wife, yet she did the most of the talking and gave most of the orders, and she was frequently there without him. Neither Mr. nor Mrs. Stevens went on the stand as a witness, but suffered the circumstances to speak and inferences to be drawn, while they, who alone knew the real fact, remained silent.
It is unnecessary for the purposes of our present inquiry, to set out the evidence. It was of the character above mentioned, and although the jury thought it was not sufficient to establish the agency of the husband, the trial judge thought differently, and set their verdict aside. And we gather from both the opinions of the learned judges of the St. Louis Court of Appeals, that in the case of another plaintiff against these same defendants, in which the evidence, with only a slight difference, was the same as in this case, that court held it was sufficient to sustain a verdict for the plaintiff establishing the lien. [McDonnell v. Nicholson, 67 Mo.App. 408.]
Since the Act of 1891, granting the right of appeal from an order sustaining a motion for a new trial, the duty of this court in reviewing the action of the trial court in granting a new trial on the ground that the verdict was against the weight of the evidence has several times come before us for consideration. The cases involving that subject have very...
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