Alexander v. Perkins

Ellison, J. Mechanics’ liens: husband and wife: husband’s agency: evidence. This action was instituted against defendant, a married woman, before a justice of the peace to enforce a mechanics’ lien against . , , „ , her real property for improvements made L L J 1 on her house. Plaintiff recovered m the circuit court. The contract was not in writing and was made with her husband, and no reference to her or to her husband being her agent was had in the contract. The allegation in plaintiff’s statement is that the husband acted as her agent in making the contract. The plaintiff’s testimony shows the contract to have been made with the husband. The .only evidence to connect defendant with the transaction is that upon one occasion she was in the house and near the bathroom where one of plaintiff’s employees was at work on the basin of the washstand and “she said to be sure and get the closet working all right.” This was not sufficient to make a case for plaintiff. It was said by us in Chicago Lumber Co. v. Mahan, 53 Mo. App. 428: “It is not enough of itself that the wife shall see the improvements going on and make no objection, or even that she may make suggestions as to the work, etc. Something more than this must appear. Kline v. Perry, 51 Mo. App. 422, and cases cited. ‘It is only when such evidence is supplemented by further proof to the effect that the wife actually participated in the making of the improvements, that is, by giving directions as to the mode and manner of doing the work’ (Lime Co. v. Bauman, 44 Mo. App. [289] 391), shall in fact appear as an actor in proper person or through an appointed agent m securing the erection of the building.” That case and those cited therein, as well as others cited in the brief, and the recent case of Farley v. Stroeh, 68 Mo. App. 85, make it clear that the evidence in this case falls short of what is essential. It would be strange if any single disconnected utterance concerning work contracted for in the name of the husband should be held evidence sufficient to establish an agency. It seems that plaintiff deemed his case too slight to establish the lien and so dismissed as to that part of his complaint (though judgment seems to have been rendered for the lien). This would have made it necessary for us to interfere had the case been otherwise sufficient. Defendant’s demurrer to evidence should have been sustained. Judgment reversed. All concur.