72 W. Va. 615 | W. Va. | 1913
J. W. Milligan sued Mrs. Eliza Alexander in the circuit court of Pocahontas county to enforce a mechanics’ lien against a lot of ground and a building erected thereon by him, situated in the town of Marlinton. From a decree granting relief to plaintiff defendant has appealed.
The amount of the lien claimed is $1,050.93. The defense is, (1) that defendant did not contract for the erection of the building and did not authorize anyone else to do so as her-agent-; and (2) that the building was not put up in a workmanlike manner. The court scaled plaintiff’s account because of imperfect work, and bad material used, and decreed a lien upon the property for the sum of $910.43, amPalso decreed that it be sold to satisfy the lien, if not paid in sixty Ndays."
The contract for the erection of the building was oral and was made by said Milligan with John Alexander, husband of defendant. The case turns upon this question: Was her husband defendant’s agent in making the contract?
A mechanics’ lien is a creature of statute, and in order to obtain such lien the requirements of the statute must be complied with. A builder can not have a lien simply by erecting a building on the land of another, independent of contract. The work must be done “by virtue of a contract with the owner or his authorized agent.” Sec. 2, ch. 75, Code (1906). Defendant and her husband both testiffed that she did not authorize him to contract for the building. The building was erected for a bowling alley and is occupied by Dwight Alexander, defendant’s son, free of rent. The contract price was $1,500, but plaintiff claims that he did extra work in putting up an addition to the building, which made his account amount in all, -to $1,738.03. Partial payments were made in June and July, .1909, amounting to $736.10.
Milligan testifies that Mrs. Alexander' was present a good deal of the time when the contract was being made; that she said' to him, on one occasion when the work was going on, “we are having the building put up on Dwight’s account, he wants to keep on with the amusement business;” and that she was present, at the building, when the agreement was made to put up an addition to it, for a boiler room, and made suggestions in regard to the manner of its construction. Concerning this
( “Proof that the wife knew of the work ordered by her husband while it was being done, and gave direction to the mechanics about it, has usually been considered sufficient to show
Under circumstances similar to those disclosed in the case under review, some courts hold that the wife is estopped to deny that a mechanics’ lien was thereby created upon her separate estate. Schwartz v. Saunders, 46' Ill. 18; Greenleaf v. Beebe, 80 Ill. 520. The same result is reached, whether the wife is made liable by estoppel or on the score of agency, presumed from her knowledge of and acquiescence in, the improvement made on her land by her husband. Inasmuch as the statute gives a married woman the right to contract for the improvement of her property as freely as if she were a feme sole, we think it is more consonant with reason to hold her liable on the ground of her husband’s agency. Such view also harmonizes with the great majority of the decisions.
There is a good deal of testimony tending to prove that some of the work on the building was not done in good workmanship style, and the court was justified in scaling plaintifi’s demand on account of it. We find no error in the decree and will affirm it.
Affirmed.