Bodey v. Thackara

Opinion, Mr. Justice Sterrett: This scire facias sur mechanics’ lien was issued by the plaintiffs, Bodey & Livingston, against the appellants, Alexander M. Thackara and Eleanor Sherman Thackara, his wife, in right of said wife, owners or reputed owners, and L. W. Kitzelman, contractor, to recover for materials furnished in and about the erection of the house. It appears that the written contract of July 15, 1887, with Kitzelman, for the erection of the building on land conveyed to the defendant Mrs. Thackara about two months before, was made in the name of and executed by Lieut. Thackara, without his wife joining therein. It was claimed by the plaintiffs, and evidence was introduced tending to prove that Mrs. Thackara assented to the contract, which was in fact made by her husband on her behalf and for her benefit; that the materials were furnished with her knowledge and consent; that they were reasonably necessary for the improvement of her separate estate, and were used for that purpose; that Mrs. Thackara was frequently upon the premises, during the progress of the work, giving directions as to the materials that were being furnished by the plaintiffs, and also as to the manner of construction ; in short, that she understandingly acted as though she herself, and not her husband, was one of the parties to the written contract. Without undertaking to review the evidence tending to prove the plaintiff’s contention that the contract was made for Mrs. Thackara and fully adopted by her, reference may be made to the proof that she examined the plans for the building, watched the progress of the work, visited the plaintiff’s mill, urged them to push on the work, etc. In her letter to them, of November 1, 1887, she wrote: “ The wood sent so far is excellent and greatly admired, but .... please push these parts and the doors through as soon as possible and [182] greatly oblige.” Again, in her letter of November 29, 1887 : .... “We want Mr. Kitzelman to put on seven carpenters, but he says you will not keep them in work. With a few lines from you saying you will send the wood fast and constantly, I can urge him on.” The evidence was abundantly sufficient to warrant the jury in finding the facts as claimed by the plaintiffs. It was fairly submitted, in a clear and correct charge, and the verdict must be accepted as a finding of all the facts necessary to entitle the plaintiffs to recover. . In view of the facts established by the verdict, there was no error in the rulings complained of in the first three specifications of error; nor was there any error in charging as recited in the fourth specification, “that a husband cannot, by making a contract like this, charge his wife’s property, unless it appears that the materials were furnished with her knowledge and consent. If she assented to the contract made by her husband in this respect, ... if she knowingly received the goods, assented to the application of the goods to her property, she is bound by the contract.” There was no error in the answer of the learned judge to either of the defendant’s points, and hence the remaining specifications of error are not sustained. As already intimated, the right of the plaintiffs to recover hinged upon questions of xact which were properly submitted to the jury and by them found in favor of the plaintiffs. Judgment affirmed.