Wheaton v. Trimble

• Decision Date: 23 November 1887
• Citation: 14 N.E. 104,145 Mass. 345
• Parties: WHEATON v. TRIMBLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 345

14 N.E. 104

WHEATON v. TRIMBLE.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1887

COUNSEL

Laurens

N. Francis, for petitioners.

The following cases rule that the evidence was competent to prove agency, and also decide that it is a question of fact whether agency exists. Merrick v. Plumley, 99 Mass. 566; Westgate v. Munroe, 100 Mass. 227; Paine v Farr, 118 Mass. 74; Lovell v. Williams, 125 Mass. 439; Arnold v. Spurr, 130 Mass. 347. In jury-waived cases, the finding of the court below upon questions of fact is final. City of Boston v Benson, 12 Cush. 61; Walker v. Penniman, 8 Gray, 233; Whiton v. Nichols, 3 Allen, 583; Cochrane v. City of Boston, 4 Allen, 177; Corporation v. Chandler, 9 Allen, 166; Crocker v. Foley, 13 Allen, 376; Robbins v. Potter, 98 Mass. 532; O'Connell v. Jacobs, 115 Mass. 21; Smith v. Collins, Id. 388; Lawrence v Lewis, 133 Mass. 561; Edmundson v. Bric, 136 Mass. 189. Whether from the above facts agency should be inferred, is not open to the respondent on a bill of exceptions. Polley v. Iron-Works, 4 Allen, 329; Westgate v. Munroe, 100 Mass. 227; Clark v Burns, 118 Mass. 275; Reed v. Railroad, 120 Mass. 43; Cook v. Railway Co., 125 Mass. 57. Even a finding upon a mixed question of law and fact should not be revised unless the law was erroneous; and, if nothing appears in the report to the contrary, the rulings of the court below on law are presumed to be correct. Turner v. Wentworth, 119 Mass. 459.

H.J. Fuller, for respondent.

Neither the respondent nor her husband had anything to do with building the house upon the respondent's land. The contract for this was made solely with the three persons who had indorsed the note, and received the money from the savings bank. Neither of them had any control over it, except the right reserved to Patrick. The contract for the extra work, for which the plaintiff seeks to establish this lien, was made wholly by the husband, almost wholly for his own special benefit, and without the knowledge or consent of the respondent. Both the respondent and her husband testified that he was not authorized to act as her agent in any way, and did not in fact. The only facts relied upon to establish the issue that "the respondent's husband was the duly-authorized agent of the respondent, and did in fact act as her agent in employing the petitioner," are that she signed a note and mortgage; occupied the upper part of the house after it was finished, near by, while the work was going on; saw the plaintiff at different times during the work; gave "some directions about the work in the upper rooms;" picking out the paper for five rooms; and allowed her husband to manage the property just as he used to when it was his. It is submitted that the court was not warranted, upon this evidence, and under all the circumstances of the case, in finding the issue in the plaintiff's favor. Arnold v. Spurr, 130 Mass. 347; Hunt v. Poole, 139 Mass. 224; Barto's Appeal, 55 Pa.St. 386; Bliss v. Patten, 5 R.I. 380; Hughes v. Peters, 1 Cold. 69; Phil.Mech.Lien, § 105.

OPINION

MORTON C.J.

The labor for which the plaintiff seeks to enforce a lien was performed by him upon the house of the defendant. He was employed by the defendant's husband; and the presiding justice, who tried the case without a jury, has found that in employing the plaintiff the husband acted as the duly-authorized agent of the defendant. The only question before us is whether there was evidence to justify this finding. There was evidence tending to show that the work was done upon her house, and was for her benefit; that she knew that the plaintiff was working upon the house, and was present at different times, and personally gave him directions as to parts of the work; that she selected the papers for the upper rooms, and the bills for them were afterwards paid by her husband. The husband and wife both testified that he was not her agent, but, upon cross-examination, she testified that "her husband...