Schmidt v. Joseph, 65 Ala. 475

Schmidt v. Joseph

65 Ala. 475 | Ala. | 1880

STONE, J.

— Our statutes give a lien to mechanics, employes, and material-men, for work or labor performed, and for materials furnished, under any contract with the owner or proprietor thereof, or his agent, trustee, &c. — Code of 1876, § 3440. “ Every person, including all cestuis qui trust, *476for whose immediate use, enjoyment or benefit, any building, erection or improvement, shall be made, shall be included by the words, ‘ owner or proprietor thereof,’ under this chapter, not excepting married women as to their separate property.” — Code, § 3460.

The present suit is by material-men, to recover for materials furnished in the building or improvement of a dwelling-house, on a lot, the title to which was and is in a trustee, for the separate use of Mrs. Joseph, the female defendant; an equitable separate estate, of which she was and is the cestui que trust. There seems to have been no dispute in the court below that the materials were furnished by plaintiffs, as claimed by them ; that they were employed in the improvement of a dwelling-house on the lot of Mrs. Joseph ; and that the dwelling, in the improvement of which they were used, was for her immediate use and enjoyment as a dwelling.

In Ex parte Schmidt & Smith, 62 Ala. 152, we laid down rules, which will fasten a lien on ' the property sought to be charged in this case, if the materials were furnished under a contract with Mrs. Joseph, her trustee, or agent, and the plaintiffs have complied with the provisions of the statute. That plaintiffs made out their claim, and filed it properly, and commenced this suit within ninety days thereafter, are facts shown by the record, and not controverted here. The real and only question is, were the articles bought with Mrs. Joseph’s authority, or did she ratify the purchase ? It is not shown in this record, under what contract Wright & Summerville undertook to make the improvement — whether they were to furnish materials or not. It is not shown that the materials have been paid for, to any one; either to Wright & Summerville, or any one else. The materials were selected by Anthony Joseph, the husband, and the defendants have had the benefit of them. The Circuit Court, at the request of the defendant’s counsel, gave the following written charge: “ If the jury believe the evidence, they will find for the defendant, Mrs. Catherine Joseph.” This charge, it has been said, is equivalent to a demurrer to the evidence, and should never be given, if there is any evidence, no matter how slight, tending in the opposite direction. — 1 Brick. Dig. 335, §§ 1 and 3; Sanders v. The State, 58 Ala. 371. Looking into the evidence in this record, we do not think it would have justified a demurrer to it. The articles purchased were selected by Mrs. Joseph’s husband, and were put in the house with her knowledge. She is enjoying the use and benefit of them, and we are not informed she expressed any dissent from such use. If she authorized her husband to make *477such selection and purchase, or if she sanctioned and ratified the purchase, knowingly, after if was made, this binds her property for the value of the goods; and these facts may be proved by circumstances, as well as by direct proof, if sufficient to satisfy the jury. A material factor in the solution of this inquiry, will be found in the terms of the contract made with Wright & Summerville, the contractors. If they were to furnish the material, as well as the mechanical labor, then inquiries will arise under other sections of the Code. — See sections 3441, 3444, 3457, 3458. If, however, Mrs. Joseph was to furnish the materials, or, what is the same, was to become direct payor to the material-men, then it would appear to be of minor importance, who made the selection, provided she accepted and used the articles purchased. Such acceptance and use would justify the jury in finding there was a ratification of the purchase. The Circuit Court erred in the charge given.

Reversed and remanded.