Wilkins v. Litchfield

Adams, Oh. J". The plaintiff averred in his petition that in September, 1880, by virtue of a contract with the defendant’s testate, he performed labor upon and furnished material for certain buildings, on certain land belonging to the defendant’s testate, E. 0. Litchfield, and that there is due him therefor the sum of $174.69. E. 0. Litchfield answered, denying the alleged contract. Afterwards he died, and the defendant, E. II. Litchfield, was substituted as his executor. [466] The fact appeal’s to be that the plaintiff performed labor upon and furnished materials for certain buildings upon E. 0. Litchfield’s land, but it is not averred nor pretended that any contract was made with him, unless through one John Browne or George II. Browne, acting as his agent. Tt is not denied that John Browne was Litchfield’s agent for some purposes; but it is denied that either lie or George II. Browne had authority to employ mechanics to make improvements upon his land; and it is denied that either of them ever undertook to do sa in Litchfield’s name, or in bis behalf. At the time of the transaction in question, Litchfield was a large land-owner in Iowa, and John Browne was acting as his agent in the sale of bis lands. George II. Browne bad been put into possession by John Browne of thelandin question, with the understanding between them that tbe land was to be sold to George, and a title pz-ocured for hizn. The improvements in question were made while Geoz’ge was in possession, and at his request, John Browne giving his assent thereto. It does not appear that at the time of the employznezit, or during the ,progress of the work, Litchfield’s name wras mentioned, or that there was any supposition on the part of the plaintiff, or any one else, that Litchfield was to pay hizn. On the other liaud, it appeal’s to have been supposed that the improvements were for tbe benefit of Geoi’ge II. Browne, and that he was to pay for the same. Tbe account set out in the statement filed for a lieu purports to be an account with Geoi’ge IT. Browne, and in the affidavit embraced in tbe statement the plaintiff swears that the contract was made with Geoz-ge II. Browne, and that the labor and materials were furnished under the contract. If George II. Browne had had at that time any interest in the land upon which a mechanic’s lien could have attached, we have no doubt but that the plaintiff could have obtained alien upon such interest. But we ai’e not able to see how it could attach upon Litchfield’s interest, because there was evidently no understanding that the plaintiff had any contract [467] with him. The statute gives no mechanic’s lien upon any interest except by virtue of a contract between the mechanic and the owner of the interest. It is said, however, that it should be held that Litchfield accepted the improvements, and thereby estopped himself t'o deny that the contract was made with hinij because he is in the use and enjoyment of the improvements. But he has a right to the complete enjoyment of his own premises, and he could not have that without enjoying the improvements. In our opinion, the decree of the court below must be Reversed.