Halliwell Cement Co. v. Elser

156 Mo. App. 291 | Mo. Ct. App. | 1911

ELLISON, J.

Plaintiff furnished material to go into a building and sidewalks in Kansas City, to one Bradfield, who had the contract to erect the building and construct the walks, and this action was instituted under the mechanic’s lien statute, to enforce a lien for the price of the material. The cause was tried by the court without the aid of the jury, and the judgment, was against the contractor for the debt, but a lien was refused against the building. Plaintiff thereupon appealed.

It appears that the property is owned by Mrs. Elser, who is the wife of G. G. Elser, and that the building was erected by Bradfield, as contractor, under a written contract with the husband. Plaintiff’s case is based on the theory that the husband was acting for his wife, as an undisclosed principal, and it is sought to hold her property liable to the lien on that ground.

To secure a lien under the mechanic’s lien statute, it is not enough that the material be furnished for a building and that it actually go into the building, but it must also be furnished to one who has a contract with the owner of the building, or his agent (sec. 8212, R. S. 1909). It is conceded that Bradfield, to whom plaintiff furnished the material, did not have a contract with Mrs. Elser, the owner, and the only question we care to notice is, was her husband, with whom the contract was made, her agent? The case was tried without declarations of law being offered, and none were given. In order, therefore, to find for plaintiff and reverse the judgment, we must say that the evidence, as a matter of law", showed the husband’s agency. This we can by no means do. We think the circuit court abundantly justified in finding that no agency was shown. The mere fact that the wife knew that her husband had made a contract in his own name to build a house on her real estate does not of itself, establish that she directed or engaged him to do so for her. [Planing Mill v. Brundage, 25 Mo. App. 268; Garnett v. Berry, 3 Mo. App. 197.] There must be an agency established and if that relation is not made out to the satisfaction of the trier of the facts, the lien must fail. [Knenzel v. Stevens, 155 Mo. 280; Winslow Bros. v. McCully S. M. Co., 169 Mo. 236.]

Plaintiff seems to place more reliance on the case of Burgwald v. Weippert, 49 Mo. 60, than it should. It is true the statute was the same when that case was decided as now (sec. 8234, R. S. 1909). It reads as follows: “Every person, including all cestuis que trust, for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made, shall be included by the words ‘owner or proprietor’ thereof under this article, not excepting such as may be minors over the age of eighteen years, or married women.”

But the court only passed on the question of the sufficiency of the petition and said nothing as to the nature of the evidence. It was not said that the mere building on the wife’s land by the husband made him her agent. The statute was not meant to force an agency upon the wife.

We have no right to interfere with the judgment, and it is affirmed.

All concur.