172 Iowa 734 | Iowa | 1915
‘ ‘ The old house was getting rotten and shaky and I told her I would build the house over for her. She said she was not in good health at the time and said I had better let it go. She said I did not have the means to do it and we will let it go for awhile. She was talking of having an operation performed about that time, but she did not have to have the operation performed at that time so I went ahead*736 with the job. She had nothing to do with the contract; she had no control over the contract; she never asked any ques-: tions about it. Q. “Did you ever bother her whatever with the contract or with the terms of it?” A. “I did not.”
He testified further that he acted independently of his wife; that he told her he was going to build and talked with her about the size of the house; that she did not object to the old house going into it; that she thought he was unable to build, but that he went ahead. This was corroborated by the testimony of Mrs. Cornell, who added: “Mr. Cornell bosses things, or tries to and pretty near does it. I did not have anything to do with the kind or size of house and Mr. Cornell would not let me have anything to do with it if I wanted to. . . . Mr. Cornell was not acting under my direction in any manner. ’ ’ She did not remember asking Griffin the price at which he could build the house and 1 ‘ did not have any control over the contract”. On cross-examination:
“I permitted Mr. Cornell to go ahead and make a contract for the house and the building of the new the way I wanted it, but he paid for it with his own money.” Q. “You let him go ahead and take charge of the affairs ? ” A. “ He built it for me.” Q. “He used your old house in building it?” A. “Yes, sir. I did not think that we could afford .a new house at that time, but I supposed if Mr. Cornell was willing to build it, I was willing to accept it, and if he was not, I could not very well make him do it. He had general management of the place and built the house and I lived in the back of it. He was the one who attended to getting the insurance and he looks after the painting of the house whenever it needs it and sometimes he furnished the paint and I do it myself.” Q. “Any repair about the house or yard or rebuilding it and anything you leave to him, he does it, is not that true?” A. “Yes. I thought that was what a man was to do. ’ ’
The ease differs from those relied on by appellant. In Miller v. Hollingsworth, 36 Iowa 163, the wife was,, in effect, alleged to have known that the lumber was being purchased of plaintiff therein to improve her land, without being paid
“He did not claim to act as his wife’s agent, nor does there appear to have been any supposition on the part of plaintiffs that the defendant Cynthia owned the land upon which the lumber was to be used. She, though confined to her house by sickness, had some knowledge that the lumber was being hauled, and used in the erection of an addition to the barn, but disapproved ,of it, and- so expressed herself to her husband, believing that their circumstances were not such as to justify the improvement. We know of no rule by which a*739 wife’s premises can be charged with a lien for improvements erected thereon by an improvident husband against her protest. ’ ’
The difference is that here the wife permitted the construction of the house, but this was with the understanding that her husband was to do this on his own account and pay therefor. The circumstances rebut any inference that he was to or did act as her agent, and of course this is not to be drawn from the mere relationship of husband and wife. It follows that there was no contract with the owner, such as is exacted by Sec. 3089 of the Code as a basis for a lien, and the decree of the trial court is — Affirmed.