74 So. 424 | Miss. | 1917
delivered the opinion of the court.
Upon motion of appellee, the stenographer’s notes of the evidence taken at the trial of this suit were, by order of this court, stricken from the record. After-wards appellee -filed a motion asking an affirmance of the judgment of the trial court, which motion was overruled. The case is therefore presented to this court upon the pleadings alone.
The appellant furnished G-. H. Pullen, the husband of Mrs. F. M. Pullen, certain building material for the purpose of building a dwelling house upon land belonging to Mrs. Pullen; the house was-built by Mr. Pullen, and the material furnished by appellant was used in the construction of the house. The house was the dwelling house of Mrs. Pullen and her husband, and was used as such. Mrs. Pullen, the owner of the land, together with her husband, was made a party to this suit, and the petition asked that a judgment be rendered against G. H. Pullen for material furnished and used in said building, and that said judgment be declared a lien on the house, and that the house be sold to satisfy the judgment.
Mrs. Pullen, the owner of the premises, defended upon the theory that she did not make the contract for the material; that she made a contract with her husband to furnish the material and build the house at a stipulated price, which was paid in advance. In other words, Mrs. Pullen, 'by her answer to the petition, de
We think a correct solution of this problem presented by this record may be reached by the application of our statutes relating to the business relation of the husband to the wife, to the facts of the case. .
In the first place, section 2521, Code 1906, makes the contract between Mrs. Pullen and her husband for compensation for work and labor a nullity. It seems that Mr. Pullen is a mechanic and the contract contemplated that he would perform the labor necessary to the construction of the building, and according to the pleadings, he did do the work.
Going a step further, it appears that Mr. Pullen was carrying on the business of a contractor, and as such made a contract with his wife to do the work and to furnish the material necessary to the completion of the job. Was he using the “means” of his wife'“to operate and carry on business in his own name”1? The wife furnished the money to enable him to perform the contract, so she avers. It was her money, and may we not say with equal certainty that money and means are one and the same thing in the statutory sense? Besides, he had charge of her land and erected the house thereon, ostensibly acting for her in the transaction of her business. The statute was designed to protect the public. Secret contracts between husband and wife are condemned for obvious reasons. We see in this case a husband building a house on the land of his wife and entering into a contract whereby he was to receive the means of the wife for the purpose of securing the material with which to erect the house. The husband did not use the means to buy the material; he bought it from appellant on credit. Who must suffer? The hus
So we think when Mr. Pullen went into the business of contracting, financed by his wife, he was her agent, there being no pretense that the contract between him and his wife changing this relation, was ever made in accordance with the statute, or that appellant had any notice of the contract. He was not only her agent, but his contracts made in furtherance of his contract were, in law, the contracts of his wife, and the payment of the contract price to him does not, in any way, extinguish the obligations of his wife to pay the account made by him for materials.
This being our view' of the law of this case, we will not discuss the very interesting brief of counsel for ap-pellee referring to the lien of the materialman. Mr. Pullen was the agent of the owner authorized to buy the material and Mrs. Pullen is bound to pay the bill and her property may be sold to satisfy the claim.
Reversed and remanded.
