Laws v. Ross

• Decision Date: 05 March 1921
• Docket Number: 2456.
• Citation: 194 P. 465,44 Nev. 405
• Parties: LAWS v. ROSS ET UX.
• Court: Nevada Supreme Court

194 P. 465

44 Nev. 405

LAWS v. ROSS ET UX.

No. 2456.

Supreme Court of Nevada

March 5, 1921

Appeal from District Court, Lyon County; T. C. Hart, Judge.

Action by B. F. Laws against John Ross and wife. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Judgment against the wife set aside, and proceeding dismissed as to her, and judgment against the husband affirmed.

Robert L. Waggoner, of Yerington, for appellants.

J Andrew Guttery, of Yerington, for respondent.

COLEMAN J.

This is an action to recover judgment in the sum of $1,012.71 against the defendants. The complaint contains two causes of action the first being to recover the sum of $624.12 for goods wares, and merchandise alleged to have been furnished, sold and delivered by the plaintiff to the defendants, at their special instance and request, for which it is alleged they agreed to pay said sum. The second cause of action is to recover for labor furnished at the special instance and request of the defendants, of the alleged value of $388.59, and for which, it is alleged, they promised to pay. It is also alleged that the materials and labor were for an addition to the rear of the Central Garage building in Yerington, Nev.; that said addition was constructed with the materials and labor furnished by plaintiff, and was fully completed by him and accepted by the defendants; and that no part of the indebtedness so alleged to have been contracted has been paid. An answer was filed denying all of the allegations of the complaint.

The defendants are husband and wife, and resided for a time at Tonopah and Blair, Nev., where they accumulated considerable money. In 1913, certain real estate in Yerington, Lyon county, Nev., upon which there was at all times during the dealings between the parties a building known as the "Central Garage," was conveyed to the defendant John Ross, who on January 1, 1917, deeded it to the defendant Mary Ross, in consideration of $1 and love and affection. On February 10, 1915, pursuant to negotiations theretofore conducted between plaintiff and John Ross, a lease was entered into whereby the plaintiff acquired possession of said real estate and improvements for a term of three years, in consideration of certain rentals agreed to be paid.

On the part of plaintiff it is contended, and the court found, that during the latter part of the year 1918 negotiations were entered into between the parties, whereby it was agreed that the plaintiff might erect upon said lot and at the rear end of the Central Garage, situated thereon, a shop, and in so doing that he should furnish all material and labor, with the understanding that upon his vacating the premises he was to be paid by the defendants for the actual cost of material and labor necessary in constructing such addition. At the time of the construction of the addition the plaintiff had no lease upon the premises. The addition is built of corrugated iron, and has a cement floor, with two or three pits.

It is the contention of the defendants that when negotiations were opened by the plaintiff for the construction of the addition, permission was given him to do so at his own expense, that they were never to pay for the same, but that plaintiff might remove the improvements when he vacated the premises, as he was compelled to do about one year after the making of the improvements. He left the improvements on the premises, and now seeks to recover the amount expended in their construction. The defendant Mary Ross now claims the property as her separate estate, but this claim was put forth for the first time in presenting her evidence upon the trial.

The trial court found the allegations of the complaint to be true, that the property upon which the addition had been constructed was community property, and rendered judgment in favor of the plaintiff and against both of the defendants. An appeal has been taken by both of the defendants from the judgment and the order denying a motion for a new trial.

The first contention of appellants to which we will allude is that certain objections to the introduction of evidence upon the ground that the defendants were improperly joined should have been sustained. No point was raised by a demurrer to the complaint before the answer was filed, nor is it now contended that the complaint was demurrable upon the ground of misjoinder of parties defendant. In view of the form of the complaint, the trial court was justified in admitting evidence which, when properly connected up, might tend to establish the cause of action pleaded, and show that the defendants were properly joined. In fact, we believe that it is a well-recognized rule in this state that the husband must, in certain instances, be joined with the wife, even though there be no liability on the part of the husband; but, in any event, in view of the facts and circumstances disclosed by the record, the court was justified in allowing the widest latitude in the presentation of evidence, as the question of the liability of Mrs. Ross might have turned upon the authority of John Ross to bind her.

Error is assigned to the adverse ruling of the court upon objections made during the trial to testimony tending to show that the indebtedness in question was incurred in connection with the construction of the addition to the Central Garage building. The objections were upon the ground that the complaint does not allege ownership of the property. No error was committed by the rulings of the court. Such an allegation was not essential to the complaint. Individuals may, and frequently do, become liable for improvements upon property to which they have no title whatsoever. If they contract an indebtedness, they cannot escape liability simply because it develops that they have no title to the realty concerning which they incurred the liability. The question for determination by the court was, Did the defendants contract the liability?

Several errors are assigned to the ruling upon objections to the admission of evidence as to the existence of the relationship of landlord and tenant between the parties. All of these assignments are utterly devoid of merit. While it was not necessary to allege the existence of this relationship, the proof of its existence tends to corroborate the testimony of the plaintiff, and is material. We take it that it was upon this theory the court admitted the evidence; but, no matter what reason may have moved the court, the evidence was competent. Counsel for appellants was supertechnical in his objections to the testimony offered in behalf of plaintiff. In view of the relationship existing between the defendants and their contentions, and of the ease with which fraud may be perpetrated by husband and wife in dealing between...