Young v. Swan

• Decision Date: 11 December 1896
• Parties: YOUNG ET AL. v. SWAN ET AL.
• Court: Iowa Supreme Court

100 Iowa 323

69 N.W. 566

YOUNG ET AL.

v.SWAN ET AL.

Supreme Court of Iowa.

Dec. 11, 1896.

Appeal from district court, Hamilton county; D. R. Hindman, Judge.

Suit in equity to establish and foreclose a mechanic's lien against the property of Ella F. Swan, for lumber and building materials sold and delivered. Ella F. Swan, in answer, denied that she ever made or authorized any contract for the purchase of lumber of plaintiffs, and states that she had no knowledge that any material of plaintiffs went into the house which was built on a certain lot owned by her. Her husband, E. R. Swan, admits that he purchased lumber of plaintiffs during the years 1889 and 1890, but he denies that he ever purchased any in his wife's name. He further says that he purchased and paid for the lumber which went into his wife's house, but that plaintiffs failed to give credit therefor. He further pleads that plaintiffs' account is not just and true, and that it contains items which plaintiffs well knew did not go into his wife's house. The lower court dismissed the prayer for a lien, and plaintiffs appeal. Affirmed.Wesley Martin, for appellants.

D. C. Chase, for appellees.

DEEMER, J.

The evidence shows that the plaintiffs sold and delivered to the defendant E. R. Swan, who was a contractor and builder and owner of what was known as the “Novelty Works,” various and sundry items of lumber and building material during the years 1888, 1889, 1891, and 1892, amounting in the aggregate to more than $1,400. This lumber was all sold and charged upon the books to the defendant E. R. Swan. Various payments were made upon this account, and the balance due May 19, 1892, as shown by plaintiffs' books, was $326.70. The plaintiffs seek to establish a mechanic's lien upon the property of Ella F. Swan for the sum of $439.81, claiming that they made a contract with her by which they agreed to furnish this amount of lumber for the construction of a building upon lots No. 3 and 4 in block 101 in Dubuque & Pacific Railroad addition to the city of Webster City. This alleged contract is denied by both defendants, and defendant E. R. Swan denies that the items shown by the exhibit attached to plaintiffs' petition went into the house built upon his wife's land. Defendant Ella F. Swan pleads that she never authorized any one to purchase lumber of the plaintiffs, and that she did not know that any lumber was purchased of them on credit. She further says that she supposed all the material going into her house was paid for. The plaintiffs do not claim to have made any contract with the wife for the sale and delivery of the lumber for which they now seek to establish a mechanic's lien; and it clearly appears that all their dealings were with E. R. Swan, and that the charges made upon their books were against him alone. They attempt to sort out and identify the lumber which went into Ella F. Swan's house, by entries upon their journal following each item of charge for which they claim a lien in these words, “for house.” It is manifest, however, from the evidence, that these entries were not all made at the time the charge was entered; and it further appears, beyond controversy, that many of these items did not go into the house which was built on Mrs. Swan's land. It is true, plaintiffs say they relied upon the property as security; but it further appears that plaintiffs did not know in whom the title was at the time they sold the lumber, and did not know whether it was incumbered or not. To establish their claim, they rely upon the agency of the husband for the wife, and the further fact that the wife knew their material was being used in the construction of her house. With reference to this last claim, it may be that the wife knew that lumber purchased of plaintiffs was being used in her house; but it is shown beyond all controversy that she supposed it had been fully paid for before delivery, and there is no showing whatever that she knew it was being purchased on credit. There is evidence to...