Jobe & Meanor v. Hunter

165 Pa. 5 | Pa. | 1894

Opinion by

Mr. Justice Green,

The claim of lien in this case was filed both against James W. Hunter and his wife, naming her as such. The scire facias was issued in the same way. Before the trial on Jan. 9, 1892, an agreement in writing was made and signed by counsel for the plaintiff and counsel for Alice Hunter, by which it was agreed that the name of Jennie Hunter should be changed to Alice Hunter, and that service was accepted, judgment was stricken off, writ stayed and defendants allowed.fifteen days to file an affidavit of defence. In the caption of this agreement both the claim of lien, No. 20 April Term, 1891, and the action of sci. fa. No. 296 April Term, 1891, were mentioned, and the agreement related to both. The effect of the amendment was to change the name of the wife from Jennie to Alice wherever it occurred in the proceedings. As she obtained very important concessions for this agreement she cannot now repudiate it.

On the merits of the case it was shown, without any contradiction, by competent testimony, that the wife had full knowledge of the contract, that the building was being erected on her land, that she took part in the conversations between, her husband and the contractors relative to the work as it progressed, that she made no objection at any time, and that considerable sums of money were paid on the contract from time to time until out of a total of $1,511.90 claimed for the whole work, only a small balance of $312.16 remained unpaid, and for the recovery of that sum this action was brought. As none of these facts were disputed, it is a necessary assumption that the work was done, and the building erected on the land of the wife, with her full knowledge and consent. In the case of Forrester v. Preston, 2 Pitts. Rep., p. 300, it was decided by the District Court of Allegheny county that in just such circumstances'as these the. wife was liable. Said Wileiams, J., in that case: “ But the building in this case was not erected without the consent of the wife under a contract made with a stranger. It was erected under a contract made with the husband and, as the facts abundantly show, under the knowledge, approbation and. concurrence of the wife. It is true that the husband made the contract in his own name, but the building was, with the knowledge and concurrence of the wife, designed and erected for her, and therefore in making the contract, the husband may be regarded in law as the agent of the wife so much so as if he had avowedly acted by her express authority. The husband’s agency may be legitimately inferred from the relation and acts of the parties.” As we regard this as good law, and as it was pronounced long before the married persons’ property act of 1887 was passed, by which the contracting power of married women was so greatly enlarged, it is certainly good law now.

This case arose while the act of 1887 was in force, but the . act of 1898, which repealed the act of 1887, still further enlarges the contracting power of married women and it may .well be that under either of these laws it would no longer be necessary to refer her liability in such cases as this to an assumed agency cf her husband. However that may be, we are clearly of the opinion that, upon the undisputed facts of this case, the defendant Alice Hunter, and her lot upon which the house in question was erected, are plainly liable to the plaintiff’s claim. All the assignments of error are dismissed.

Judgment affirmed.