2 Ga. App. 269 | Ga. Ct. App. | 1907
The plaintiff sought a-general judgment against the- defendant and a special judgment against certain real estate belonging to her, against which he alleged he was entitled to-enforce his lien as a contractor and materialman. The petition alleged a balance to "be due for material furnished and work done by him under a contract with the defendant as to certain water connections, sewerage connections, and plumbing in a certain house and on real estate alleged to have been owned by defendant in the city of Douglas. The petition averred, that the material was,
The testimony for the plaintiff showed, that W. W. Terrell, the husband of the defendant, alone had employed him and contracted with him to do the work and furnish the material set out in the bill of particulars attached to his petition; that the plaintiff had done the work and furnished the materials, and that it was all worth $113.57; and that this had been paid by the said W. W. Terrell, except $44.94, which he refused to pay, claiming that what he had paid was as much as the material and work were worth. After the plaintiff had completed his work and furnished the material therefor, and when he went to record his lien for the balance claimed by him, he discovered that the real estate in question did not belong to W. W. Terrell, but was the property of his wife, Mrs. Alice C. Terrell; and the plaintiff thereupon made out and recorded his lien against the wife. There was not the slightest suggestion even that the plaintiff had any contract, agreement, or understanding, directly or indirectly, with Mrs. Terrell in regard to the material or work in question; and the only reference made to her at all was the fact that she was present a part of the time while the work was being done and made some suggestion as to putting in an extra wash basin, coupled, however, with the injunction to see her husband about the matter first; which the plaintiff did. Such contract as the plaintiff had was solely with W. W. Terrell, the account was charged to him, and he made all of the payments thereon, as heretofore stated.
The evidence may have been sufficient to establish the loss of the ■original claim of lien, but it is immaterial whether this is so or :not. If this paper was properly identified before us, we could not reverse the judgment of the trial judge, although he may have (excluded the paper for the wrong reason. It would have been prop
We come next to consider whether there was error in awarding the nonsuit for the reason that the plaintiff was entitled to a general judgment. We do not think the court erred in adjudging a nonsuit. The evidence did not establish the fact that the defendant was an undisclosed principal and that the husband was her agent. There is in the evidence no suggestion that the plaintiff' had any contract, agreement, or understanding with 'Mrs. Terrell in regard to the material or work in question. The only reference made to her in’ the evidence is the statement that she was present part of the time while the work was being done, and made a suggestion as to putting in a certain wash basin, coupled, however, with the injunction to see her husband about the matter first; which the plaintiff did. There was no stipulated price to be paid for the-work to be done, and no evidence that the defendant authorized it to be done. Nor does any reason appear from the evidence why the plaintiff would not have done the work for the husband. Such contract as plaintiff had was with W. W. Terrell only, the account, was charged to him, and he made all the payments thereon. There-was, no escape from a nonsuit; because the plaintiff alleged contractual relations with the defendant, and there was no testimony-tending to support this allegation. “A materialman’s lien does, not arise against the real estate of the true owner unless the material is furnished directly to the true owner or ‘to one who occupied the legal relation of a contractor, or one who had some contractual relation with the true owner in connection with the improvements to be made.’” Pittsburgh Glass Co. v. Peters Land Co.
We have only referred to these decisions upon the subject of liens because the plaintiff in error strenuously insists that plaintiff was entitled to a general judgment, and the same doctrine of agency or authority to act would be applicable to bind the defendant for the contract of her husband and subject her to a general judgment as would be necessary were the'assignment as to the special judgment properly before us. The only real question, therefore, is whether, the relation of husband and wife being shown, a finding is required that the latter shall, in any and all events, be bound therefor, where the husband for any reason sees fit, of his own accord and upon his own responsibility, to make expenditures upon premises which happen to be owned by the wife, but which were not the basis of the credit extended; or whether the creditor in such cases shall be required to prove other facts or circumstances in addition to the relationship, showing it to be right and proper that the wife shall be bound for the contract. If the husband is acting as agent for his wife and she is simply the undisclosed principal, of course her liability can not be questioned any more than if he had, with her assistance, concealed or misled the contractor as to the true ownership of the property, to improve which work or material was furnished. The authorities cited by the plaintiff in error upon the subject of an undisclosed principal are not applicable to the facts of this case. Where the wife is the principal and the husband agent, there are generally at least some circumstances
Under the decisions in the cases of Colquitt v. Solomon, 61 Ga. 494, Masland v. Kemp, 70 Ga. 786, and other cases cited, there can be no question that even if the copy lien tendered should have been allowed as evidence, it can not be considered by this court. It is attached to the bill of exceptions on a separate sheet and following the judge’s certificate. It is not identified by the judge’s signature as being the “exhibit A” referred to in the bill of exceptions. Certainty, therefore, there could not have been a special judgment against the defendant; and as, in our opinion, the plaintiff’s evidence fails to show that the wife was the undisclosed principal of her husband, and the evidence showed, without contradiction, that the employment was procured by the husband, the work done according to his suggestion and wishes, and all the payments made by him, there could have been no general judgment against the defendant. There was no error in the judgment awarding a non-suit. Judgment affirmed.