218 S.W. 556 | Mo. Ct. App. | 1919
Plaintiffs are a copartnership engaged in business under the name of the Berkshire Lumber Company. The firm, as one of several lien claimants, brought this action under sections 8235a to 8235g, Laws 1911, p. 314, to establish a materialman's lien against real estate owned by defendant, Irma H. Holcker, wife of the defendant Otto Holcker. The other lien claimants were made parties and filed their respective petition wherein each of them, like plaintiffs, set up a right to a lien against the property on the ground that they furnished material to one, Brown, who had a written contract with the husband, Otto Holcker, for the erection of the improvements involved.
In order to establish their liens, it was necessary for the lien claimants to show some agency connection, in the nature of a moving cause, reaching from the improvements back to the owner of the land; and, as the only right or authority Brown had from any one to go upon the land and erect the improvements was the *435 written contract signed by himself and Otto Holcker, and as none of the lien claimants had any basis or authority whatever for the furnishing of material except their contracts with Brown, the only way in which any connection reaching back to the owner could be established was to show that Otto Holcker in making the contract with Brown was acting for and on behalf of his wife and as her agent within the meaning of that term as used in the lien statutes. The various lien claimants, therefore, charged in their respective petition that Otto Holcker, in contracting with Brown for the erection of the improvements, did so as the agent of his wife. This was denied by each of the Holckers. On the contrary, they asserted that Otto Holcker made the contract in fact, as it appears to be on its face, for himself individually.
Thereupon all of the lien claimants, pursuant to section 8235f, Laws 1911, p. 316, filed a joint motion, alleging that "there is an issue of fact in this case which is common to all the mechanic's lien claimants who are parties to this action" and that the issue of fact referred to was whether or not Otto Holcker was the agent of Irma Holcker, his wife, in the erection of the building described in the pleadings, and moved the court to frame said question into an issue of fact and submit it to a jury.
This motion the trial court sustained and an issue was written and submitted whereby the jury was required to find whether the husband was the wife's agent to erect or cause to be erected, the improvements in controversy. After a trial the jury returned said issue with their verdict stating that they "find the issues for the defendants and answer said question `No.'"
The lien claimants' motions for new trial were sustained by the court on the sole ground that error was committed in giving instruction No. 6 for defendants, and they have appealed from that order.
Said instruction No. 6 told the jury that the sole issue (submitted by the court as above stated), for their *436 determination was whether the contract in evidence between Otto Holcker and Brown (the contractor), was entered into by Otto Holcker for and on behalf of himself, or by said Otto Holcker for and on behalf of his wife, Mrs. Irma Holcker, if the jury believed from the evidence that the contract betweenn Otto Holcker and said Brown was made and entered into by said Otto Holcker for an on behalf of himself and as his own individual contract, then the verdict should be that said Otto Holcker was not the agent of Mrs. Irma Holcker. It is said that this instruction narrowed the issue. We think it did not. It states the very issue formulated by the court at the request of the lien claimants and to which no objection was offered either to its scope or form. None of the lien claimants make any claim that they furnished any labor or material directly to either Mr. or Mrs. Holcker; but all claim that they furnished it to Brown the general contractor. It is udisputed and beyond question that the only right or authority Brown had from anyone to go upon the land and erect the improvement was the written contract in evidence signed by himself and Otto Holcker. As hereinbefore stated, there was no connection of any sort between Mrs. Holcker and the general contractor, Brown, or between her and any of the lien claimants; there was no connection between Otto Holcker and any of the lien claimants giving them authority, even from him, to furnish material for the improvements save and except the contract he made with Brown. Consequently the only route, by which any possible connection between the lien claimants and the owner could be traced, lay through the contract between Otto Holcker and Brown. This being so, then unless it was shown that Holcker, in contracting for said improvements, did so for and in behalf of his wife, there was no relationship of any kind established between the lien claimants and the owner, Mrs. Holcker. It cannot be said that the effect of the instruction upon the minds of the jury was to withdraw from their consideration the evidence covering the general *437 aspects of the question whether or not the husband was acting in his wife's behalf — i.e., with her active volition and consent as a moving cause in procuring him to erect the improvements for her — because the instruction in no way deals with the evidence to be considered by the jury in order to determine the issue submitted; and the jury were told in plaintiffs' instruction No. 4 that in arriving at their verdict they were not required to find that there was any formal written authority from the wife to the husband to enter into a contract with Brown for the erection of the improvements, "but in determining whether the defendant Otto Holcker was authorized by his wife, Irma Holcker, to erect or cause to be erected the building and garage upon the real estate in question, you shall take into consideration all of the facts and circumstances in evidence." So that we are unable to perceive any error in said instruction No. 6.
But it is true, as stated by claimants, that if there is any other error in the trial, of which complaint has been made in their motions for new trial, advantage may be taken of it to justify the granting of the new trial, even though it was not mentioned by the trial court. [State ex rel. v. Thomas,
Among these other allegd errors is the one that the lien claimants' refused instruction No. 1 should have been given. The refusal, however, is fully justified because said instruction 1 is wholly covered lien claimants' instruction No. 4 hereinabove mentioned. Besides, instruction No. 1 submitted solely the bare hypothesis whether the husband "was authorized by his wife to erect or cause to be erected the building and garage upon the real estate in question," and if so, then the jury should answer the question submitted to them in the affirmative; and the court could well have refused the instruction on the ground that, under the pecular state of the evidence as to the wife's knowing that the husband was building the house and was passively willing to allow him to do so, the instruction should *438
not have used the word "authorized," standing alone and unexplained, as though it meant an agency even within the meaning of the lien statutes, which at least requires that some active element in the nature of a moving cause should emanate from the owner to the one making the improvements before the owner's land can be affected by a lien. By the wife's passive permission and consent the husband would be "authorised" in the sense that he would not be a trespasser, and yet there would be no element of agency, within the meaning of the lien statute, emanating from the wife to the husband, as an active and moving cause on her part, to procure the erection of the improvements. And unless there was at least this sort of an agency existing between the owner and the husband, there is no ground for a lien on the owner's land under our statute, as we will hereinafter show in dealing with the question of whether the lien claimants were entitled to a directed verdict, as is now asserted by them on appeal. There was no question but that the wife did passively allow the husband to build the house, he using his own property and means to pay therefor; and, therefore, the court might as well have given a peremptory instruction as to have given the one under consideration, for the jury would have been led to believe that as the husband was authorized by his wife's mere passive consent, this was sufficient to afford foundation for such agency as is necessary and requisite to the establishment of a lien. Lien claimants cited Holland v. McCarty,
It is also claimed that the court erred in striking out a part of lien claimants' instruction 5 before giving it. The instruction was to the effect that although Otto Holcker paid out nearly $9000 of his own money on account of the building and although the contractor may have failed to use some of the money which was paid him for the building, yet you are instructed that such facts of themselves do not constitute any defense as against the lien claimants. To the instruction, as offered, there were also the words, "and you will not let such facts influence you one way or the other in answering the questions submitted to you;" but the court in the presence of the jury struck them out. There was no error in this. The instruction as given was full and complete without such addition, and the action of the court in no way tended to prejudice the jury.
In addition to the complaint as to defendants' instruction No. 6, each of the others given for them is objected to. They relate principally to the fact that knowledge and no objection by the wife to the erection of the house by the husband, standing alone, did not make him an agent. These objections are sufficiently disposed of in what we have written and in what is hereinafter said upon the subject of whether lien claimants are entitled, as a matter of law, to a finding and judgment that the husband was the wife's agent, which the lien claimants now contend for and assert we should direct.
Upon this feature of the case it is to be observed that there was no attempt to show any express agency; there was no evidence of any original authority emanating from the wife, as a moving cause, to the husband or to anyone else, to erect the improvements. The agency attempted to be shown and relied upon is an agency implied from facts and circumstances. For the purposes of this case, we may concede that, notwithstanding the contract purports on its face to be made by the husband for himself, there is evidence tending to show that he made it for his wife as her agent. This consisted of *440 facts showing that the wife knew the house was being built on her land, that she visited it in the course of construction, that at his request she looked over the plans and made suggestions, and that she signed a note and deed of trust securing a loan on the land which the husband obtained to be used on the house, and that finally upon the abandonment of the job by the contractor and after the husband had with his own funds completed the house, he with his wife and family moved into and occupied the house as a home. However, according to the evidence in defendant's favor, the wife did not know she was signing a deed of trust on her land but thought she was signing some papers in her husband's business.
On the other hand, there was the evidence of the contract itself and the defendant's evidence that no agency existed between them in reference to the house; that on the contrary the husband was, himself, building the house as a residence, putting in his own property in payment thereon (which fact appears on the face of the contract), and also putting in more money than he borrowed; and, as stated, that the wife did not knowingly sign a deed of trust on her real estate.
On account of the peculiar nature of the relation between husband and wife and the commonly performed duty of the husband to provide a house for their home and joint occupancy, it by no means conclusively follows that she has made him her agent to build a house for her because she knows he is building the house on her land, and that she shows interest in the construction of the house and, at his request, looks over the plans and makes suggestions. Anything short of that wifely interest would be unnatural, and it can all exist in entire consistency with her disclaimer of having made him her agent to build the house for her. It may aid the jury along with other things in making up a verdict but that is all. [Keunzel v. Stevens,
So, therefore, since there was evidence tending to show either way on the question of agency, we think it was proper to submit the question to the jury to determine. And this course is authorized by section 8235f, Laws 1911, p. 316, which also provides that the court "shall be bound by the findings of the jury thereon in the further proceedings in said cause, subject to the power of the court to grant new trial of such issues." Of course, this provision of the statute does not forbid the setting aside of the jury's verdict if the evidence shows, as a matter of law, that there was an agency existing between the wife and the husband. And the above quoted provision of the statute is cited only for the purpose of answering the suggestion that since the 1911 Act denominates the suit "an equitable action," we may treat the jury's verdict as advisory only and pass upon the weight and credibility of the evidence for ourselves as we are permitted to do in the case of a suit in equity purely. Under this statute, however, unless the evidence does show, as a matter of law, that an agency existed between the wife and the husband, we have no more authority to disturb the verdict than in any other law case. *442
Upon the question of whether the evidence shows agency as a matter of law, it is to be observed, in the first place, that the lien claimants at the trial conceded that the matter of the husband's agency was a question for the jury for they did not offer a demurrer to defendants' evidence nor ask a peremptory instruction, but joined in asking instructions on the disputed issue, and without objection submitted it on the evidence to the jury, called at their request. [Kenefick-Hammond Co. v. Norwich, etc., Ins. Society,
But aside from, and in addition to this admission, we cannot bring ourselves to agree with lien claimants' contention that we should now declare, as a matter of law, that the husband was acting as agent for his wife and with her authority, established by implication arising on the facts. Such claim is, in effect and as applied to the evidence, that if Mrs. Holcker knew of the erection of the house by her husband, and merely permitted it and consented thereto, she thereby made him her agent with such power in him which, while it would not bind her personally to pay for the improvements, nevertheless, was sufficient to bind her property to the payment of a mechanic's lien. In some States, the statute makes consent of the owner sufficient (Zeigler v. Galvin, 45 Hun. 44, 48) but that is not our statute. And we do not understand the authorities to hold that under our statute, or under statutes similar to ours, mere consent or acquiescence will furnish the necessary agency connection to support and uphold a lien. [Kuenzel v. Stevens,
In support of the contention that we should declare that an agency existed as a matter of law, the cases of Ward v. Nolde,
Clearly the case of Ward v. Nolde,
The Boeckler case, on the facts there disclosed, is not in conflict with our decision in this case, because of a substantial difference in the evidence. In that case the wife testified that she knowingly assisted in borrowing the money for thepurpose of finishing the building; while in the case before us there was strong testimony that the wife "had nothing to do with the plans, and *444 never talked with the contractor; that the house was her husband's" that "it was my lot and Mr. Holcker's money:" that her husband did not ask her permission or consent; that she did not know she was signing a deed of trust to obtain money; that she signed some papers without knowing what they were because she was asked to do so and had every confidence in her husband.
Again, it is manifest that the Boeckler case was not only decided upon different evidence, but on different issues from those presented by and involved in the trial of this case. The holding in the Boeckler case was that "on the facts here in evidence and which we have summarized, it is clear, as a matter of law, that the wife is estopped from denying the agency of her husband in the erection of the house." (Italics ours.) [
In the Boeckler case the testimony as to the wife's conduct and knowledge came largely from her own lips. They were admissions; and for this reason the court could pass upon her conduct as a matter of law. The wife's knowledge in the Boeckler case was more than the mere knowledge that her husband was building a house on her lot; it was the knowledge that she was pledging her property for the funds with which it was to be built. In the case at bar no such knowledge on the wife's part was shown. At the time Mrs. Holcker signed *445 the deed of trust he construction of the house had not begun and the record does not show that she knew at that time her husband had entered into a contract with Brown to erect the house. We note plaintiff's contention, in the last typewritten suggestion filed, that she did know. But it is manifest that it is only by taking widely separated statements relating to different matters, and combining them as if they were closely connected, that plaintiffs can even draw an inference that she did know of the contract at that time. Certainly it does not conclusively appear that she did. She was not told and did not know what papers she was signing or the purpose thereof or that her husband intended to use the proceeds to help build the house. It was urged at the oral argument that a person will not be allowed to deny the execution of a document they have signed, on the ground that they did not read it and did not know its contents. No doubt this is true under many circumstances, but this is not a case where the other party to the instrument is seeking to enforce it.
Although plaintiffs never pleaded estoppel, and in spite of the fact that by failing to demur to defendant's evidence or to ask a peremptory instruction on the issue involved, plaintiffs conceded at the trial that the question of agency was for the jury, nevertheless they now insist that the husband's agency for the wife was conclusively shown and that Mrs. Holcker is, as a matter of law, estopped from denying agency. It is a well established rule that litigants cannot on appeal assume a position directly contrary to that taken at the trial [Hopkins v. Modern Woodmen,
There is no contradictory testimony as to her lack of knowledge in reference to the above matters, but even if there was, unless the contradictory evidence was conclusive upon her, it is not for this court to ignore the verdict of the jury or to ignore the testimony supporting it, and declare as a matter of law that she did know what she was signing and did make her husband her agent to erect the improvements.
This element of the wife's knowledge, in this case, is directly opposite to what it was in the Boeckler case, and it is a vital and crucial difference, and especially so if it is sought to hold the wife's property upon any theory of subsequent ratification of the husband's acts. It is well settled that there can be no ratification where the one who has the power of ratification is ignorant of the facts. [Winsor v. Lafayette County Bank,
Viewing the case from every angle, we are unable to declare, as a matter of law that there was an agency connection between Mrs. Holcker and her husband with reference to the erection of the improvements either under his contract with Brown or otherwise, and as there was no error in the trial wherein the case was submitted to the jury, we cannot uphold the granting of a new trial, and hence the verdict of the jury must stand. It is therefore ordered that the judgment be reversed and the cause remanded with directions to reinstate the verdict and enter judgment in accordance therewith. All concur.