178 Ky. 233 | Ky. Ct. App. | 1917
Reversing.
This action was instituted in the Warren circuit court by the appellees, C. S. Hollingsworth and Clive Young, who were partners under the firm name of HollingsworthYoung Hardware Company, for a personal judgment against Josie U. Hines, and to enforce a materialman’slien, under chapter 79, Kentucky Statutes, upon her house and lot, in the city of Bowling Green. By an. amended petition, Samuel D. Hines, the husband of appellant, Josie U. Hines, and C. U. McElroy, trustee, holding the legal title to the property, for the use and benefit of Josie Ú. Hines, were made parties. The petition simply contented itself with alleging, that C. U. McElroy was the trustee, who held the legal title to the property under a deed executed to a former trustee, and was of record in the office of the clerk of the county court of the-county. The deed was not filed with the record, nor was there any showing, on the part of the plaintiffs, that the: deed under which it was held, was such in its terms, as would permit the placing of a materialman’s lien upon the property by contract, either’ with the trustee or with, the cestui que trustent. Samuel D. Hines and C. U. Me-Elroy, the trustee, offered separate answers, but they do not seem ever to have been filed. The record merely shows that the answers were offered, and for what reason they were not filed does not appear, as there were no-objections appearing of record to their being filed. Not having been filed, they were not replied to nor was there-any further mention of them in the record. The appellees, who were the plaintiffs below, stated that by a contract made with Josie U. Hines, by and through her husband, Samuel D. Hines, as her agent, and by her knowledge and consent, they furnished paints to the amount of one hundred and twenty-three dollars, which were used, in improving the dwelling house in which she lived-Further allegations were made to the effect, that they had filed in due time and caused to be recorded in the proper office, the statement of their lien required by chapter 79, supra, and this does not seem to be controvertedThev asked for an enforcement of their lien, and a sale of the house and grounds, upon which it stood, in satisfaction of their debt.
Josie U. Hines filed an answer and amended answer, in which she denied that any contract had been made with, her for furnishing the paints by the appellees, and that same were not furnished by them with her knowledge and
The evidence for the appellees tended to prove, that they knew, that Mrs. Hines was the owner of the property, and that in furnishing the paints, they did same upon her credit and charged the same to her upon their accounts; although the contract and arrangement to furnish the paints were entered into by one Jarrett, who represented Peaslee Gaulbert Company, with Samuel D. Hines. It seems, that the appellees were the parties, who were authorized to furnish the paints manufactured by Peaslee Gaulbert Company, in Bowling Green, and that Jarrett was an agent of the Peaslee Gaulbert Company, who had authority to make contracts for the 'sale ;of paints, but who sold them through the appellees. ^The evidence offered for appellants tended to prove, that the paints were contracted for by Samuel D. Hines, upon his personal credit, and that he notified Jarrett, with whom he made the contract, that the materials were to be charged to him and were to be used upon a house, :the title, to which, was held by a trustee-for Josie U. Hines, but, that he requested Jarrett to sell him the goods through the agency of the appellees, and thereafter he notified them of such facts. It was, also, proven for the appellants, that Grider, the trustee, who was then living, had furnished a portion of the money to be used in improving the house, but had, furthermore, refused to consent that the improvements should be made upon the credit of Mrs. Hines, or that she should be, in anywise, responsible for them, and that the property should not be incumbered on that account. The lot upon which the house stood had a front of one hundred feet, and. two
The circuit court adjudged that the appellees recover ' a-personal judgment against Josie U. Hines for the' amount of their claim, and, also, that they had a lien, to • secure its payment, upon the house upon which the ma-' terials were used,- and the lands used with' it, and ad- '■ jiidged a sale of a sufficiency of the lands to satisfy the' judgment. From this judgment, Josie U. Hines and her' trustee have appealed.
\ It is not considered necessary to determine whether-a:state of case is presented by the evidence, which would justify the rendition of a personal judgment against josie U. Hines for the claim sued on arid a judgment enforcing*' a lien"upon her property, if she was the holder of the. title to it, in accordance with the principles adhered to in Tarr & Templin v. Muir, etc., 107 Ky. 283; Johnson v. Bush, 65 S. W. 158, 23 R. 1399; Jefferson v. Hopson Bros., 27 R. 140, and Salisbury, et al., v. Wellman Electrical Co., 173 Ky. 462. In those cases, where a riiarried woman' and her property were held for improvements placed upon the property by mechanics and materialmen,' under contracts made with the husband, it was done upon" the principle, that if a married woman accepts work and materials used upon her property, a promise to pay for them is implied upon her part. The implied promise to pay for them upon her part arises out of the fact, that she was the owner of the property, arid had authority under law to create a materialman’s and mechanic’s lien upon the property by her own contract, and that the work and materials were beneficial to the property, and if the contract was made by the husband, and the improvements made upon the property with her knowledge and by her consent, it wras implied, that she ratified the contract of her husband, and thereby promised and agreed to pay for them. Under such circumstances, however, if it could be shown, that the husband- had contracted to have the Improvements made upon his own credit, arid-that the mechanics and material men should not look to* the lien upon the property'to secure-their debt,' no implied promise1 arose'to bind the wife,-and no lien could be placed-upon her property. In each of those cases, the married woman was the fee simple title'holder of' the’-property upon which the improvements' were made,' and had an- ' thh'ritv to- create a lien upon them by contract for im-prdvements upon the -property.--
The question relating to the sufficiency of the description of the property adjudged to he sold, for apparent reasons, is not now necessary to he determined.
The judgment is therefore reversed and cause remanded lor proceedings consistent with this opinion.