Ogden v. Kelsey
| Decision Date | 30 March 1892 |
| Citation | 4 Ind.App. 299,30 N.E. 922 |
| Parties | OGDEN v. KELSEY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Allen county; A. A. CHAPIN, Judge.
Action by Robert Ogden against Phœbe Kelsey. Judgment for defendant. Plaintiff appeals. Affirmed.
Allen Zollars, S. F. Swayne, and N. J. Doughman, for appellant. J. B. Harper, for appellee.
The appellant's complaint is in three paragraphs, to recover for plumbing done on real estate belonging to the appellee. The first paragraph is on account for work done and materials furnished at the request of the appellee, as set out in a bill of particulars. The second paragraph is for the work and materials named in said bill of particulars; it being further alleged that the appellee was the owner of certain real estate in the city of Ft. Wayne, and that, for the betterment of said real estate, she employed the appellant to do the work and furnish the materials aforesaid. The third paragraph relates to the same work and materials, alleging that the appellee ordered the same, agreed to pay the appellant therefor, knew of and inspected it while the work was being done, and made no objection thereto. A personal judgment for $250 is asked. No other relief is contemplated or demanded in either paragraph of the complaint. An answer of two paragraphs was filed. The first was a general denial. The second was as follows: “And for a further answer and defense the defendant says that the real estate upon which the work and labor was performed, and for which the materials were furnished, was and is her own separate property; that at the time said work was done and materials furnished the defendant was a married woman; that the plaintiff did said work and furnished said materials under an order from and contract with the defendant's husband, since deceased; that the defendant gave to the plaintiff no order therefor, nor her consent thereto in writing; that she in no way contracted for the performance of said work and the furnishing of said materials, but the same was and is the separate contract and debt of her said deceased husband; and that she has in no way since said time made the same her separate and individual indebtedness.” A demurrer to this paragraph of the answer being overruled, a reply of general denial was filed. The cause was tried by a jury, and verdict returned for the appellee. Over the appellant's motion for a new trial, judgment was rendered for the defendant for costs. The appellant has assigned as error the overruling of the demurrer to the second paragraph of the answer, and the overruling of the motion for a new trial.
It is contended by counsel for the appellant that the second paragraph of the answer is based wholly upon the idea that the appellee is not liable, for the reason that she gave no written order for the doing of the work. Section 5123 of the Revised Statutes of 1881 declares that “whenever repairs or improvements are made on real property of the wife by order of the husband, with her consent thereto in writing, delivered to the contractor or person performing the labor or furnishing the material, she alone shall be personally liable for the labor performed or the material furnished.” It would seem that, in the preparation of the second paragraph of the answer, this section of the statute was thought of, and that, therefore, it was, among other things, alleged that “the defendant gave no order to the plaintiff therefor, nor her consent thereto in writing.” But there is much more than that in the paragraph. It is alleged that the work was done and materials furnished upon the order of her husband, and upon a contract with him; that she in no way contracted for the performance of said work and the furnishing of said materials, but that the same was and is the separate contract and debt of her said husband; and that she has in no way made the same her separate and individual indebtedness. The allegations found in this paragraph are, we think, ample to dispute and meet the liability asserted in the complaint, express or implied. It differs materially from the paragraph of answer held to be insufficient in Neeley v. Searight, 113 Ind. 316, 15 N. E. Rep. 598. It may be that it is an argumentative denial, and that its material averments could have been proved under the general denial; but, if so, the overruling of the demurrer thereto would not on that account be ground for reversing the judgment. State v. Wylie, 86 Ind. 396;Sohn v. Jervis, 101 Ind. 578, 1 N. E. Rep. 73; Leary v. Moran, 106 Ind. 560, 7 N. E. Rep. 236.
Each paragraph of the complaint alleges, in substance, an employment of the appellant by the appellee to do the work and furnish the materials sued for. A contract, in legal contemplation, is an agreement between two or more parties for the doing or the not doing of some particular thing. The contract or agreement may be express or implied,-express, when it consists of words, written or spoken, expressing an actual agreement of the parties; implied, when it is evidenced by conduct manifesting an intention of agreement. When the contract is not implied-that is, one not created or implied by law-the minds of the parties must come into complete accord; the one consenting to exactly the same thing the other does. In an implied contract,...
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