105 Neb. 44 | Neb. | 1920
Lead Opinion
L. M. Thomas & Son, plaintiff, brought this suit against Lavina George and E. T» George, her husband, to foreclose a mechanic’s lien for hardware furnished in the erection of a dwelling-house on lot 1, in block 99, óf University Place, Nebraska, owned by the defendant Lavina George. The defendant Horsch Lumber & Coal Company filed a cross-petition against the defendants George, seeking to foreclose a mechanic’s lien for $701.12 for lumber and material furnished in the erection of the same building. The defendant William Seng sought judgment against the defendants George for a balance due for the construction of the dwelling-house. The district court by its decree dismissed the plaintiff’s suit, and rendered a money judgment against the defendants George for $393.75 in favor of the defendant William’ Séng, and dismissed the 'cross-petition of the
Appellant’s assignments of error are that the court erred in denying the foreclosure of its lien, and in refusing to render a personal judgment against the defendant E. T. George, and in holding that the Georges were not the original contractors for the material furnished, and that Lavina George had not authorized E. T. George to purchase the material and bind her property for the payment thereof.
We are agreed with counsel for both parties that there are but two questions in this case, as follows: (1) Is the Horsch Lumber & Coal Company, appellant, entitled to establish a lien against the property of the defendant Lavina George? (2) Is the Horsch Lumber & Coal Company entitled to a personal judgment against the defendant E. T. George?
As before stated, this is a suit by which appellant seeks to establish and foreclose a mechanic’s lien for lumber and material furnished by it in the erection of a dwelling-house on the lot described owned by the defendant, Lavina George. It is undisputed that she owned the lot and is the wife of the defendant E. T. George. It is settled law in this state that a mechanic’s lien is purely statutory and must be based upon contract, express or implied. Rev. St. 1918, sec. 3823; Bradford v. Higgins, 31 Neb. 192; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80; Occidental Building & Loan Ass’n v. McGrew, 86 Neb. 694. It is equally well settled that a mechanic’s lien cannot be created upon the land of a married woman for work done or material furnished in improving such land under a contract with her husband, where the husband acts merely for himself, and that whether the husband was' the agent of the wife in the matter is a question of fact and will not be presumed from the marital relation alone, and that the failure of
With these propositions of law in mind, we will consider the evidence on this point. The record discloses that Mrs. George herself never had any business relations with the appellant. If, then, she was bound by any contract with appellant, it must have been through the agency of another or from such facts and circumstances known to her as would imply an agreement. On the question of agency, the only evidence is that of Mrs. George herself, who was called as a witness by appellant, thereby placing her credibility beyond impeachment. She testified in the most explicit terms that she never ordered any of the material in question, did not talk to her husband about it, had nothing to do with any negotiations for it, that she had nothing at all to do with it and knew nothing about it, that no one did anything for her in the matter, and that she authorized no one to do anything for her in the premises’. Her testimony excludes any idea of agency. Appellant seeks to escape the consequences of this testimony by urging the following: (a) That, in the original answer of the Georges, it was admitted that they agreed to purchase from appellant the bill of lumber in controversy, (b) That Mrs. George admitted in her testimony that her husband was “acting for both of us.” (c) That, in testifying to his agreement with appellant to take the material in question, her husband constantly used the plural personal pronoun “we,” meaning thereby himself and wife, (d) That the trial court found that both husband and wife had jointly contracted with Seng for the same material, (e) That Mrs. George paid for part of the material and thereby ratified the contract her husband had made with appellant.
As to the first of these points, it appears that the original answer in this case was verified by the husband alone, and the wife knew nothing about it; that the
There is a further phase of this case, consideration of which not only will confirm the foregoing conclusion, but incidentally will dispose of appellant’s claim to a- personal judgment against E. T. George. Appellees, while admitting that Mr. George verbally agreed to purchase from the appellant the lumber and material used in the construction of the building, contend that, before delivery of any material or payment of any 'money, the
We think that the judgment of the district court was right, and we recommend that it be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed.
The following opinion on motion for rehearing was filed February 10, 1921. Former opinion modified and judgment of district court reversed.
1. Husband and Wife: Agency. A husband may act as the agent of his wife in contracting for materials to be used in the construction of a house upon property, the separate estate of his wife, and the question of agency is a question of fact, to be determined from the circumstances of each particular case.
3. Contracts: Novation. An agreement, in order to result in a novation, must contain two stipulations, expressly stated or necessarily and clearly inferred from the terms used — one, to completely extinguish an existing liability, and the other, to substitute a new one in ’its place.
4. -: -: Burden of Proof. Whether the original debtor is completely released must be determined as a question of fact, depending upon the intention of the parties, and the burden of proof is upon the original debtor to show such release and novation, when he asserts it as a defense.
Rehearing
On motion for rehearing. The questions arise on the cross-petition of the Horsch Lumber & Ooal Company, seeking to recover a money judgment against defendants E. T. George and Lavina George, husband and wife, and to foreclose a 'mechanic’s lien upon' the property of Lavina George, the company having furnished lumber for the construction of a house upon property, the separate estate of Mrs. George.
One defense is that the company furnished lumber upon the contract of E. T. George, and that he did not act, in contracting- for such lumber, as the agent of his wife, but for himself alone. The record does not sustain that defense.
Mrs George testified that she and her husband had for some'time talked of building a home upon the property in question; that she, herself, drew a great number of plans for the house and finally they decided upon one of them; that she and her husband then met with a
In fact, all the testimony tends to but one conclusion: That Mrs. George and her husband planned and constructed the house together as a common enterprise,
The facts in the case, therefore, do not bring it within the rule announced in Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, that mere knowledge by the wife that her husband is constructing buildings on her premises does not establish agency, when he acts for himself alone, and ■where she takes no part in the planning or direction of the construction of the house.
The question of whether the husband acts with authority from the wife and is her agent is a question of fact to be determined from the circumstances of each particular case. Mere knowledge that a building is being constructed by her husband upon her premises, when that fact stands alone, is insufficient to show that her husband acted as her agent. Agency in such a case will not be presumed from the marital relation; but the fact that the wife has such knowledge, in the light of other evidence, may, be of strong corroborative value. Owing to the close relationship existing between husband and wife, an agency by the husband may be created by slight circumstances. It is unnecessary that they enter into any formal contract of agency, nor is it necessary that the wife expressly state to her husband that she gives him authority to act. Such an agency may be inferred from things said and acts done.
Where it is shown that a husband and wife plan a home together, to be built upon premises constituting the wife’s separate estate, and where she draws the plans and shares in directing and controlling the undertaking, helps select certain materials, is present during and takes part in the conversation with the contractor at the time the contract for the construction of the building is entered into, frequently visits the building during the course of construction, to see that the plans are being carried out, the acts of the husband, in ordering materials and labor in furtherance of such common undertaking, are sufficiently shown to have been done under
It may be further pointed out in this connection that the trial court made a-specific finding that Mrs. George had bound herself as a party to the contract made with the contractor, and her testimony shows that, at the time of the execution of that contract, she was informed of the arrangement between her husband and the lumber company for the furnishing of lumber. Had she not been informed of that arrangement prior to that time, her action, after such information had been imparted to her, in then proceeding to a contract with the contractor, whereby he was to take over the lumber hill and use the lumber in the construction of. the house, constitutes a ratification of an arrangement made between her husband and the lumber company, and shows' an authority ■from her that the particular lumber t ordered should he used upon her premises. It is our opinion, therefore,, that a mechanic’s lien would attach.
The defendants George and his wife assert, as a further defense, that, after Mr. George had made the contract with the company, the company agreed to turn the lumber bill agreement over to the contractor of the defendants, and that the defendants were thereby released by a novation.
The original lumber bill was $1,300. In the beginning Mr. George expected to conduct and supervise the erection of the building himself. Later it was decided that the work would he .let to a contractor. When Mr. and Mrs. George went over the matter of construction with the contractor, changes were made in the plans, and it became apparent that extras would be necessary on the lumber bill. At the time of this conversation, the Georges agreed with the contractor that he should take over the
Mr. George relates the conversation thus: “I told Mr. Kallemyn (the lumber company’s manager) that the bill of lumber that we had agreed to take had been taken by Mr. Seng (defendants’ contractor), that he had contracted to build our house and he would take it on the terms that we had talked over with him. * * * I don’t recall just what may have been said more than this, that we had let the contract to Mr. Seng and he was to erect the building and furnish the material, taking this bill of lumber that we had agreed to take from them. * * He (Mr. Kallemyn) said; ‘It don’t matter much to me, just so I get my money; that is what I am in-, terested in. ’ * * * Q'. At that time all you had said to Mr. Kallemyn was — that is, as to these extras — that you were to pay for them. Wasn’t that the question of your conference at that time with him? A. I think so, at the time we told him the contract was with Mr. Seng. * * * A. What I told Mr. Kallemyn was that there were certain things that were to be extras; we knew they would be in there, and they would be extra, above this bill. Q. And ‘we’ were to pay for them, or words to that effect? A. Well, I don’t know just what I said there, but the thought was that this was a part of the contract, and this would be above the contract price of the lumber; here was a certain bill of lumber figured, but Mr. Seng couldn’t take that bill of lumber without these additional doors, windows, and change to the more expensive floor; we had talked that over, so we expected to pay for the extras on those. Q. Who do you refer to as ‘we’? A. Myself. Q. And not Mr. Seng; you don’t mean that he was a part of that Gve’? You mean yourself?. A. Well, I went to Mr. Kallemyn, who was furnishing this lumber,
Mr. Georg’e’s brother testified: “My brother told Mr. Kallemyn that he had let the contract for his building to Mr. Seng, and that he was to take the lumber bill, and that my brother said I am to pay extra for what doors and windows and floors there is used, over this bill,” and that Mr. Kallemyn answered either “that the house is good for the pay,” or that he was “interested in getting” his pay, or “something to that effect.” Mr. George did not remember whether' anything was said in that conversation as to whom he would make payment for the extras; whether he would pay the contractor or the company direct. Upon that point his testimony is quite indefinite, but his testimony is that he had in mind that he would pay the contractor, who in turn should pay the company.
The company received $1,389.62 on its account. This more than covers the original bill of $1,300. The extras amounted to $790.74, and there remains unpaid a balance of $701.12. The conversation had with regard to extras is quite important. The question presented is whether such conversation is sufficient to support a finding of novation. The testimony on behalf of the company, which conflicts with that of defendant Georg’e, and is to the effect that Mr. George was, in this conversation, affirmatively told that he would be looked to personally for pay, and would not be released, it.is unnecessary to consider. Mr. George naturally would desire that his contractor take the lumber that he had contracted for. Had the' contractor purchased lumber elsewhere,- or entered into an independent contract for lumber, Mr. George would have had two bills of lumber to account for, when he could use only one. Tn the light of these circumstances, does the conversation, as' related by Mr. George and his brother, indicate that Mr. George was to
A novation will never be presumed. The complete discharge of the original debtor must be shown to have been expressly agreed upon, or must be necessarily and clearly inferred from the express terms of the agreement. . An agreement, in order to result in a novation, must contain two stipulations: One, to completely extinguish an existing liability, and the other, to substitute a new one in its place. Before the original debtor will be discharged and another party substituted in his place, the burden is upon the original debtor to show, just as in proving any other contract, that such was intended, not only by him, but also by the creditor and by the party to be substituted. Goetz Brewing Co. v. Waln, 92 Neb. 614; Western White Bronze Co. v. Portrey, 50 Neb. 801; Indiana Bridge Co. v. Hollenbeck, 99 Neb. 115; Mercer v. Miles, 28 Neb. 211; Barnes v. Hekla Fire Ins. Co., 56 Minn. 38; Studebaker Bros. Mfg. Co. v. Endom, 51 La. Ann. 1263, 72 Am. St. Rep. 489; State Bank v. Domestic Sewing Machine Co., 99 Va. 411, 86 Am. St. Rep. 891; 20 R. C. L. p. 372, sec. 16; and note, L. R. A. 1918B, 113.
In the case of Barnes v. Hekla Fire Ins. Co., supra, the court said (page 41) “It is frequently the case that the creditor consents to the arrangement as a favor, or for the convenience of his debtor; and we apprehend it would be a surprise to the parties, as well as an injustice, in many cases, if it were held to operate as a release of the original liability; and therefore it should distinctly appear, from the express terms of the agreement, or as a necessary inference from the situation of the parties, and the special circumstances of the case, that such was the intention and understanding of the parties, of which the creditor was chargeable with notice.”
The law protects those furnishing materials and lumber for building purposes, on the theory that the owner may protect himself by seeing that all bills are paid before he settles with the contractor. If a full settlement has been actually made with the contractor in this case before the bills were paid, we cannot, in this suit, relieve against the situation. The defendants’ remedy is against the contractor, who, Mr. George’s testimony shows, is financially responsible.
The former opinion is modified in the respects above indicated, and the case is reversed and remanded for further proceedings in accordance with this opinion.
Reversed.