McCarthy v. Caldwell
| Decision Date | 09 June 1890 |
| Citation | 45 N.W. 723,43 Minn. 442 |
| Parties | John F. McCarthy and another v. Jennie Caldwell and Husband, impleaded, etc |
| Court | Minnesota Supreme Court |
Action to enforce a mechanic's lien for $ 410 and interest. Plaintiffs appeal from an order of the district court for Hennepin county, refusing a new trial after a trial by Hicks J., and a dismissal ordered at the close of plaintiffs' case.
Order refusing a new trial reversed.
Welch Botkin & Welch, for appellants.
Davenport & Thian, for respondents.
Action to enforce a mechanic's lien upon real estate owned by the defendant Jennie Caldwell, who is the wife of the defendant E. P. Caldwell. The work for which the lien is claimed consisted of the plumbing in a house which was being constructed under a contract with Mrs. Caldwell. The plumbing, however, was not included in the contract for building made by her. Her husband alone contracted with the plaintiffs to put in the plumbing; but it was an issue in the case whether this was on his own account or whether he acted as agent for his wife. The testimony on the part of the plaintiffs went to show that during the progress of the work, and when it was about one-third done Mrs. Caldwell was in the house and saw some of the plumbing work which had then been put in; that one of the plaintiffs conversed with her regarding payments, when she gave assurances that payment would be made as soon as the work should be done; and that subsequently she joined with her husband in a note and mortgage to be given to the plaintiffs for the amount then unpaid. The account for material and labor was charged to her by the plaintiffs. In her defence, Mrs. Caldwell denied having the alleged conversation with one of the plaintiffs, declared that she did not know that her husband had ordered the plumbing to be done, and that she knew nothing about it; that she had no knowledge that the plaintiffs did it, or that it was to be done, or that it was being done. In rebuttal, one Crum, a witness, testified on the part of the plaintiffs that, during the progress of the plumbing work, he saw Mrs. Caldwell in the house, and conversed with her about some of the work already put in, concerning which she made inquiries and remarks expressive of approval. Upon the motion of the defendant, this testimony was stricken out on the ground alone that it was immaterial and irrelevant, no objection being made to the order of...
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