Kidd v. Wilson

Weight, J. i. mechanic's men: failure to ale account, TJpon what ground or grounds this demurrer was sustained, does not appear from the record, Nor do counsel state in their argument. We .... .. . understand that it is insisted that the petition [466] is obnoxious to each and all of the objections stated. They may be examined briefly, for in our opinion neither of them are well taken. The failure to file “ a just and true account of the demand” with the clerk within ninety days, did not operate to defeat the lien against the owners. Rev. § 1851, as amended by ch. 11, Laws 1862, p. 127. a_husband and wiie. Nor does the fact that the account annexed, omitted the name of the wife, make any difference. The notice of lien thlis described the property fully an(j c01Tect]y; an(j claimed it against both of them. And though no such claim or demand had been filed, the lien would have been good as against the owner. The law, as it now stands, only requires such notice as against third persons, incumbrancers and purchasers. And see Noel v. Temple, 12 Iowa, 276. 3_liability °fwife. It is averred, as appears by the statement preceding this opinion, that plaintiffs furnished the materials for the erection of the house upon which the lien is claimed; that they were furnished at the request of W. L. Wilson, as agent for appellee, for her use and benefit, and with her knowledge and consent, and for which they agreed to pay the amount claimed, etc. And thus it appears, giving to the language used a reasonable intendment and construction — the law .requires that we shall give to every pleading a liberal construction, with a view to substantive justice (Rev. § 2951; and see Allen v. Patterson, 3 Seld. 476; Mann v. Morewood, 5 Sandf. 577)—that plaintiff furnished these materials for the erection of this house, upon a contract with the wife, through her agent. The averment that they were furnished at the request of the husband, “ as the agent of the wife,” shows prvnia fade his right to thus bind her. And especially so, when it is further averred that the materials were furnished for her use and benefit, with [467] lier knowledge and consent, for which they agreed to pay, etc. " So that we feel bound to conclude that the petition, though not the most formal, is substantially good; that if the averments therein contained are true, as conceded by the demurrer, plaintiff would be entitled to the relief asked, and that in holding it insufficient, the court below erred. See Cotes & Davies v. Shorey, 8 Iowa, 416; Jones v. Swan, 21 Id. 181. Reversed.