Milligan v. Alexander
| Decision Date | 17 June 1913 |
| Parties | MILLIGAN v. ALEXANDER. [d1] |
| Court | West Virginia Supreme Court |
Submitted February 20, 1912.
Syllabus by the Court.
If a husband contracts, in his own name, with the knowledge of his wife, for the erection of a building on her land, and the work is carried on also with her knowledge and consent, she will be presumed to have constituted her husband her agent and her property is liable to a mechanic's lien for such improvement.
Proof that the wife was frequently present, in company with her husband, while the building was being erected, and on one occasion gave directions, or made suggestions, as to how a certain part of the building should be constructed, is sufficient evidence that she consented to having the building erected.
Appeal from Circuit Court, Pocahontas County.
Bill by J. W. Milligan against Eliza Alexander. Decree for plaintiff and defendant appeals. Affirmed.
L. M McClintic, of Marlinton, for appellant.
Price Osenton & Horan, of Marlinton, for appellee.
J. W. Milligan sued Mrs. Eliza Alexander in the circuit court of Pocahontas county to enforce a mechanic's lien against a lot of ground and a building erected thereon by him, situated in the town of Marlinton. From a decree granting relief to plaintiff, defendant has appealed.
The amount of the lien claimed is $1,050.93. The defense is (1) that defendant did not contract for the erection of the building and did not authorize any one else to do so as her agent, and (2) that the building was not put up in a workmanlike manner. The court scaled plaintiff's account because of imperfect work and bad material used, and decreed a lien upon the property for the sum of $910.43, and also decreed that it be sold to satisfy the lien, if not paid in 60 days.
The contract for the erection of the building was oral, and was made by said Milligan with John Alexander, husband of defendant. The case turns upon this question: Was her husband defendant's agent in making the contract?
A mechanic's lien is a creature of statute and in order to obtain such lien the requirements of the statute must be complied with. A builder cannot have a lien simply by erecting a building on the land of another, independent of contract. The work must be done "by virtue of a contract with the owner or his authorized agent." Section 2, c. 75, Code (1906). Defendant and her husband both testified that she did not authorize him to contract for the building. The building was erected for a bowling alley, and is occupied by Dwight Alexander, defendant's son, free of rent. The contract price was $1,500, but plaintiff claims that he did extra work in putting up an addition to the building, which made his account amount, in all, to $1,738.03. Partial payments were made in June and July, 1909, amounting to $736.10.
Milligan testifies that Mrs. Alexander was present a good deal of the time when the contract was being made; that she said to him on one occasion when the work was going on: "We are having the building put up on Dwight's account; he wants to keep on with the amusement business"--and that she was present, at the building, when the agreement was made to put up an addition to it for a boiler room, and made suggestions in regard to the manner of its construction. Concerning this latter fact Milligan is corroborated by L. W. Herold, who was present and heard the conversation. Mrs. Alexander denies that she was present when the original contract was made, but admits that she was present when the contract for the boiler room was made, and that she was at the building with her husband frequently when the house was being erected. She denies giving instructions, or making suggestions in regard to the building of the boiler room. The chancellor had to determine the facts upon the conflicting testimony of the witnesses, and we cannot say that his finding, which must have been that the facts were as Milligan had testified, is erroneous. Then, do the facts and circumstances prove agency of the husband? We think they do. It is true that agency of the husband will not be presumed from the marital relations alone. Boisot on Mechanics' Liens, § 277; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N.W. 112, 83 Am.Rep. 513. But the agency may be established by circumstantial evidence, and we think the facts and circumstances are such as to warrant the conclusion that, in making...
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