FROM HILLSBOROUGH CIRCUIT COURT. I think no judgment can be rendered on this report, for the reason that all the facts reported are at the same time consistent with a contract by which the defendant would be bound, and almost, if not quite, equally consistent with a special contract by the husband binding himself alone. Was Herman Dane acting as the agent of his wife when he employed the plaintiff to do the painting? That is an important inquiry — perhaps the great question in the case; and the referee has not passed upon it one way or the other. The defendant owned the house. Suppose a son, of age to contract for himself or any other person, who was at the time a member of the family, had, in general terms, employed the plaintiff to do the work, which was afterwards done under the eye and according to the specific directions of the defendant: no one could fail to see at a glance that the first question would be, was the person thus engaging the labor and materials acting as agent for the owner of the house, or was he acting entirely on his own behalf, intending either a gratuity to her, or to make the improvements himself in pursuance of some contract with her by which he was to be paid? Clearly, it makes no difference, under our statutes, *Page 322 that the person making the engagement was the husband of the owner of the house. The fact that these persons were husband and wife is of no consequence, except as it bears upon the question of agency. It is simply the case of A employing a laborer to work upon the house of B, where the work is done with the knowledge and under the immediate direction of B as to details. In the absence of a very plain contract, fixing the individual liability of A, excluding the idea of agency and the liability of B in any event, such facts would undoubtedly furnish grounds for the inference that B is liable as principal upon the contract of hiring made on his behalf by A, as well as for the inference of a tacit contract and promise arising from the fact that the work is done under the immediate direction of B and for his benefit.
The question to be tried in this case is, whether the defendant is in any way bound by contract to pay for the labor and materials expended by the plaintiff on her house; and this may involve an examination of any one or all of these three questions: (1) Was there an express contract, — that is, did the husband contract on her behalf as her agent? (2) Was there an actual but tacit contract and understanding to be inferred, as matter of fact, from the fact that the work was done for her benefit with her knowledge and assent? (3) Is she estopped by her conduct to deny a contract by which she is bound? Sceva v. True, 53 N.H. 632.
CUSHING C. J. The case finds that the defendant held in her own right the dwelling-house on which the plaintiff's labor was performed. It does not find whether she was holding in her own right at common law before the statute of 1860, or to her sole and separate use under the statute of 1846, or in her own right under the statute of 1860; so that we cannot say, as matter of law, that the husband was not interested as tenant during their joint lives, or as tenant by the courtesy, even without undertaking to determine exactly what his rights would be under the statute of 1860; — and we call also see, that, as occupant with his wife, he had an interest in keeping the property comfortable for occupation.
So far, therefore, as the law would imply a contract from the fact of benefit derived from the work, there is no more reason to imply it against the defendant than against her husband. As matter of law, therefore, I cannot see any foundation for an implied contract against the defendant.
The case shows that the work was done at the request of the husband; that nothing was said to the plaintiff, and that he knew nothing, about the wife's ownership of the house; and that he charged the work to the husband. If, therefore, the husband made the contract as agent of his wife, that is a fact which does not appear from the case, and which must be found by the trier before the plaintiff can have judgment.
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