A. M. Becker Lumber Co. v. Stevens

BOND, J. On the third of September, 1894, Mrs. P. G. Stevens, wife of O. M. Stevens, acquired by deed a lot of ground, which her husband contracted with architects and builders should be improved so as to provide a residence for himself and wife. Under the personal contracts of the husband the improvements designed were begun, but before completion the original contractors abandoned the work in consequence of a controversy with the architects as to the terms of the building contract. Some of the sub-contractors were unpaid when the original contractors relinquished their jobs. Among these was the plaintiff, who brought this action for a personal judgment and a lien against the building for [561] material furnished and used in its construction. The evidence as to the participancv of Mrs. Stevens in the making of the contracts for the improvements and also as to her suggestions or directions to the contractors during the progress of the work, is substantially the same as that set forth in the two cases, McDonnell v. Nicholson, 67 Mo. App. 408; Kuenzel v. Stevens, 73 Mo. App. 14, decided in this court. On the trial plaintiff had a verdict and judgment establishing the lien prayed for and also a personal judgment against the contractors. The owmers of the property appealed to this court, where the cause was submitted on the twenty-second of March, 1898, and decision withheld because of the certification of Kuenzel v. Stevens, to the supreme court, which latter case involved questions of law determinative of the points arising on the appeal in the one at bar. These questions have been ruled on by the supreme court in its recent opinion. We accordingly proceed to dispose of the one at bar. The decisive question presented by this appeal is, what degree of evidence is essential to prove the agency of the husband for the wife in contracts made in his own name for the improvement of her real estate? If such agency is shown the property in question may be charged with a mechanics’ lien in the contingencies provided for by the statute on that subject. If it is not proven the husband alone is responsible upon his personal contract with the mechanic. Heretofore this court, following the lead of the supreme court, has ruled that the evidence of such agency “must be clear and strong, and leave no doubt in the minds of the jury that such authority was given.” Kuenzel v. Stevens, 73 Mo. App. 14; Carthage Marble & White Lime Company v. Bauman, 44 Mo. App. loc. cit. 392; Eystra et al. v. Cappelle, 61 Mo. 578; Savings Bank v. Butchers and Drovers Bank, 130 [562] Mo. 155. More recently, however, this court restricted the application of the rule announced in the above cases to proceedings to enforce mechanics’ liens, and refused to extend it to any other dealings on the part of the husband on behalf of his -wife. Long v. Martin, 71 Mo. App. 569. ,Iu the latter case the point in judgment was the correctness of an instruction which told the jury that it was sufficient “to establish the husband’s agency for the wife by a preponderance of the testimony.” The majority of this court decided that such an instruction embodied an accurate and scientific statement of the rule of law governing the general transactions of the husband as agent of his wife. That case was certified to the supreme court, where it has been recently decided, and the conclusion arrived at by the majority of this court fully approved. See 54 S. W. Rep. 473. In the case of Kuenzel v. Stevens, supra, the supreme court has still more recently applied the same doctrine to proof of agency in mechanics’ lien suits, thus symmetrizing the rules of law on this subject and overruling the incongruous cases upon. which the old rule rested. We therefore hold that the trial court in the case at bar did not err in submitting the issue as to the agency of the husband for the wife upon the simple question of the preponderance of the evidence on that point, and as there was evidence tending to prove such agency the assignment of error that the verdict is unsupported by the proof must be overruled. • The next error assigned is that there was no evidence that the lumber sued for was used in the construction of the building within four months prior to the filing of the lien. An. examination of the testimony shows that there was evidence tending to show that so much of the lumber as was sued for was furnished and used in the construction of the building within the statutory time prescribed for filing a materialman’s lien. The jury were at liberty to accept the [563] evidence tending to establish that fact, and to disregard that of a contrary purport, and their verdict concludes the matter. The judgment is affirmed. Judge Bland concurs; Judge Biggs absent.