Wilson v. Fower et al., No. 19959.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Cave
• Citation: 155 S.W.2d 502
• Parties: H.C. WILSON, DOING BUSINESS AS H.C. WILSON PLUMBING & HEATING COMPANY, RESPONDENT, v. CHARLES L. FOWER AND MARIE H. FOWER, APPELLANTS.
• Docket Number: No. 19959.
• Decision Date: 03 November 1941

155 S.W.2d 502 H.C. WILSON, DOING BUSINESS AS H.C. WILSON PLUMBING & HEATING COMPANY, RESPONDENT,
v.
CHARLES L. FOWER AND MARIE H. FOWER, APPELLANTS. No. 19959. Kansas City Court of Appeals, Missouri. November 3, 1941.

Appeal from Circuit Court of Macon County. — Hon. Harry J. Libby, Judge.

REVERSED AND REMANDED.

[155 S.W.2d 503]

Waldo Edwards for appellant.

(1) The defendants, owned the town lots on which a lien is sought, as an estate by the entirety. Any act effecting title to this property must have been a joint act of husband and wife. The contract of Charles Fower alone did not subject the lots to a lien. LaCrosse Lbr. Co. v. Goddard, 151 S.W. (2d) 455; Badger Lbr. Co. v. Pugsley, 61 S.W. (2d) 425; Goldberg P. & S. Co. v. Taylor, 237 S.W. 900; R.D. Kurtz v. Field, 14 S.W. (2d) 11; Magidon v. Stern, 148 S.W. (2d) 151. (2) The petition in this case is insufficient as a plea of estoppel against the wife, Marie Fower. Badger Lbr. Co. v. Pugsley, 61 S.W. (2d) 425; Marshal v. Hall, 200 S.W. 770. (3) The petition in this case does not plead ratification by the wife of the husband's acts. Ratification of an agent's contract to be relied on must be pleaded. Badger Lbr. Co. v. Pugsley, 61 S.W. (2d) 425; Lipscomb v. Talbot, 243 Mo. 28. (4) The defendant, was acting for himself. Plaintiff testified that he made the contract with Charles Fower. In order that there might be a ratification of the act of Charles Fower as an agent of his wife, the act must have been done by Charles Fower as an agent of his wife. He was not an agent in fact, and did not assume to act as an agent — he was acting for himself. Herd & Son v. Bank, 66 Mo. App. 643; Piggott v. Denton, 46 S.W. (2d) 620. (5) Before a lien could be placed on these lots, held as an estate by the entirety, the evidence must be strong and persuasive evidence to the effect that the act that subjected the lots to a lien was the joint act of the husband and wife. Badger Lbr. Co. v. Pugsley, 227 Mo. App. 1210. (6) Mere knowledge on the part of Marie Fower that plaintiff was doing the plumbing and furnishing the material for a house on lots held by her and her husband as an estate by the entirety, and passive acquiescence therein by her, are insufficient to show that her husband acted as her agent in making contract, so as to bind her personally, or to warrant charging lien against her property for cost of labor and material. Kurtz v. Field, 14 S.W. (2d) 9; Goldberg P. & S. Co. v. Taylor, 209 Mo. App. 98; Hadley-Deen & Co. v. Schaefer, 11 S.W. (2d) 61; McCray Lbr. Co. v. Standard C. Co., 285 S.W. 104. (7) The fact that Marie Fower, after the house was built and all material and labor paid for, excepts plaintiff's account, joined with her husband in execution of a deed of trust upon the property, held by them as an estate by entirety, was insufficient to show acquiescence or ratification, even had they been pleaded to warrant charging the property with the lien. Kurtz v. Field, 14 S.W. (2d) 9. (8) There is no proof in this case that the improvements for which the material and labor were furnished were upon any particular lot described in the petition. It was admitted. "It is admitted that these lots is the property on which this work was done." The word "lot" as used in the statute, (Sec. 3546, R.S. 1939), means "lot on which building is located." Steinkamper v. McManus, 26 Mo. App. 51. (9) The original petition filed in this case wholly failed to state a cause of action against these defendants. It merely charged legal conclusions of the pleader. It charged a contract was made and failed to state what the contract was. It failed to state any obligation upon the defendants. It further stated that "the labor and materials were sold and delivered upon the faith and credit of a lien upon said premises," and nowhere does it charge that the defendants, expressly or impliedly, agreed to pay. After the close of plaintiff's evidence and after demurrers to the evidence had been argued, the court permitted plaintiff, over objections of defendants, to amend said petition by interlining the following, "as agreed on in said contract and which defendants agreed to pay." It was an abuse of judicial discretion to permit this amendment and to deny the defendants a continuance when affidavit of surprise was filed. Stewart v. Am. Ry. Co., 18 S.W. (2d) 520; Sec. 971, R.S. Mo. 1939; Lynn v. Assurance Society, 111 S.W. (2d) 231. (10) After the close of all the evidence the court again permitted plaintiff to amend his petition by striking out the amendment previously made and inserting in lieu thereof "price agreed on in said oral contract which was cost of materials to the plaintiff f.o.b. Macon, plus 20 per cent profit to the plaintiff and the price of one dollar per hour for the time of a plumber and 50 cents per hour for the time of a plumber's helper for the labor furnished by the plaintiff and that such labor and materials furnished by said plaintiff under said agreement amounts to the sum of six hundred twenty-six dollars and forty-five cents." This final petition fails to state a cause of action. It was an abuse of judicial discretion to permit this amendment and to deny the defendants a continuance as requested. Sec. 971, R.S. Mo. 1929, Cases, supra under Point 9. (11) There was no legal proof that the lien claim was filed within six months from the furnishing of the last item of material or labor. It is necessary to allege in the petition and prove that the account was filed within the six months' period. Sec. 3551, R.S. Mo. 1939. (12) The affidavit to the account was signed by H.C. Wilson Plumbing & Heating Company. This was not a verification as required by the statute. Sec. 3551, R.S. Mo. 1939. (13) If the trial court was justified in holding that plaintiff was entitled to a lien, it was error for the court to fail to pass on the question of priority of lien over deed of trust. La Crosse Lbr. Co. v. Goddard, 151 S.W. (2d) 455. (14) It was error for the court to admit incompetent, irrelevant and immaterial evidence offered by plaintiff, over objections of the defendants, for the reasons set out and assigned under Assignments of Error No. 7. (We deem no citation of authorities necessary for these elementary rules of evidence.) (15) It was error for the court to give and read to the jury Instruction A for the reasons set out under Assignment of Error No. VIII. An instruction must not be broader than the pleadings and the evidence. An instruction must not assume as true, controverted facts. An instruction must not be in conflict with other instructions. An instruction that directs a jury to find a verdict must require the jury to find all facts necessary for a verdict. (16) It was error to give and read to the jury Instruction B for the reasons assigned under No. 9 of Assignments of Error. (17) It was error to give to the jury Instruction D for the reasons assigned under No. 10 of Assignments of Error. (18) The oral instruction given to the jury was not only confusing, but was in direct conflict with written instructions given at request of defendants. This oral instruction was a command by the court to the jury to go out and find for the plaintiff and against both defendants. A confusing and misleading instruction is erroneous. Giving an instruction in direct conflict with other instructions is reversible error. (We deem no citation of authorities necessary to support these points.)

Walter C. Goodson for respondent.

(1) The court did not err in permitting plaintiff to amend his petition by interlineation during the trial or at the close thereof. The statute on amendments is to be liberally construed, particularly where amendments are offered to conform to the proof. Sec. 971, R.S. Mo. 1939; Meyer v. Schmidt, 131 Mo. App. 53, 58; Lumber Co. v. Realty Co., 171 Mo. App. 614; Philip Gruner Lumber Co. v. Hartshorn Barber R. Co., 154 S.W. 846; Meyer et al. v. Schmidt, 109 S.W. 832, 834. (2) The trial court did not err in refusing to give to the jury an instruction at the close of all the evidence to find for both defendants. Henry Evers Mfg. Co. v. Grant, 284 S.W. 525, 527; Berkshire v. Holcker, 202 Mo. App. 433, 439, 440; Boeckler Lumber Co. v. Wahlbrink, 191 Mo. App. 334, Aff. 208 S.W. 840; Magidson v. Stern, 148 S.W. (2d) 144, 151; Collins v. Megraw, 47 Mo. 495; Carthage Marble and White Lime Co. v. Bauman, 44 Mo. App. 386, 391; Tucker...