Daly v. Arkadelphia Milling Co.

Wood, J., (after stating the facts). I. vOur statute provides that, any person who shall perform any work upon or furnish any material for any building upon land, or for repairing the same, “under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this act shall have for his work” a lien upon such building and upon, the land belonging to such owner or proprietor. Kirby’s Digest, § 4970. There is no pretense that the material furnished and the work done for which claim is made in this suit were under or by virtue of any contract with the owner or proprietor in person. The contention is that Townsend had the work done as the agent of the owner. There is no testimony in the record to warrant a finding that Townsend was the agent of Daly in the matter of having the repairs done on the building. (1) Where the contract is made with an agent to have work done and material furnished in order to bind the principal, under the 'statute, it is essential that the agent have authority to make such a contract. The burden of proof was upon the appellees to show that Townsend was the agent of the owners, Daly and his sister, and that as su'ch agent he acted within the scope of his authority when he authorized Roberson to make the improvement on the lot in controversy. While Townsend' testified that he was the agent of Daly in looking after the property and in closing the deal, and that as such agent he authorized Roberson to go into possession and make the improvements, this testimony falls far short of proving that Daly constituted Townsend his agent for the purpose of having improvements made. This testimony of Townsend does not show that he was authorized by Daly to make the improvements. Giving Townsend’s testimony its strongest probative value in favor of the finding of the chancellor, it only tends to show that Daly consented that Roberson should make the improvements and approved of his act in doing so. Undoubtedly, the testimony of Townsend shows that he was the agent of Daly to look after the property at Arkadelphia and to make sale of the property for Daly; and it also shows that Townsend assumed that he had authority as such agent to authorize Roberson to make the improvements for Daly. Now, the fact that Townsend was the agent of Daly to “look after the property and close the deal” did not authorize him to make the improvements to the extent shown in this record. It can not be said that improvements to the extent and cost of these were within the real or apparent scope of the authority of the agent, Townsend. Nor would the authority to make such improvement be implied from the express authority to look after and sell the property. (2-3) No principle of law is better settled than that the authority of an agent can not be established by the mere fact that the person claiming such authority has exercised it. It must also be shown by positive proof, or by circumstances that would justify the inference that the principal had assented to the acts of his agent. St. L., I. M. & S. Ry. Co. v. Bennett, 53 Ark. 208, 210; Wales-Riggs Plantations v. Dye, 105 Ark. 446. While the .relation of principal and agent can not be proved by the declarations of the agent, it may be established by the agent’s testimony. Ayer-Lord Tie Co. v. Young, 90 Ark. 104; Dierks Lumber & Coal Co. v. Coffman, 96 Ark. 505. • Therefore, if Townsend had testified that by virtue of his agency to look after the property and to make sale of the same to Roberson, he was authorized by his principal, Daly, to have the improvements made, or to authorize Roberson to make the improvements for Daly, the case would have been entirely different. But a careful analysis of the testimony of both Townsend and Roberson will not show that either of these parties had the authority to make the improvements or to authorize the same to be made for Daly. The testimony of Roberson shows that Daly had written him that he might make the improvements at any time he wanted to, and that he went ahead with the work partly at the request of Townsend, Daly’s agent. But the utmost extent of this testimony is to show that Daly consented that Roberson might make the improvements, and that Daly’s agent, by his acts, assumed that he had authority to authorize Roberson to make the improvements. Therefore, Roberson’s testimony also falls short of showing the essential fact, that Daly authorized any one to make the improvements for him or for his benefit. (4) Knowledge on the part of Daly that Roberson was in possession of the property and making the improvements and consent on his part that the improvements should be made, and his approval of such improvements, did not establish the fact that Daly authorized improvements to be made for his benefit, and therefore justify the finding of the chancellor that T. J. Daly placed R. A. Roberson in possession of the property and authorized the said Roberson to repair or rebuild the house on said lot. It seems to us that this is the correct conclusion, even from a consideration alone of the testimony of the witnesses for appellees, and the letters of Daly in the record, upon which they rely as tending to establish the authority upon the part of Roberson and Townsend to have the improvements made. But when all this testimony is considered in connection • with the testimony of Daly to the effect that he gave no one authority to improve the property whatever as his agent, it is clear to us that the above finding of the court is against the preponderance of the evidence. Liens of mechanics and materialmen “are creatures of the statute and must be perfected and enforced ac-' cording to its provisions.” In Hoffman v. McFadden, 56 Ark. 202, 205, we said: “Under the statute of this State creating lien for work done or materials furnished in making improvements on real property, the lien exists only where the labor is performed, or materials are supplied, under a contract, expressed or implied, with the owner of the land. * * *" The terms of the act import no intention to create a lien in the absence of such contract, and there is no decision of this court giving the statute by construction a wider meaning than its language implies.” See, also, Doke, Admr., v. Benton County Lumber Co., 114 Ark. 1, 7. The cases upon which appellees rely are differentiated from the instant case by the facts of those cases. Moreover, any decision contrary to that which we have reached, if based upon statutes similar to our own, would be unsound, and we could not follow them. II. There is no testimony in this record to warrant a finding that the appellees furnished the material and did the work, for which they sue, upon any knowledge upon their part that Daly owned the property and had authorized the improvements to be made. Daly lived at Palmer, Texas, and was several hundred miles away at the time the appellees furnished the material and did the work under contracts entered into by them with Roberson. So far as the proof shows to the contrary, they did not know that Daly and his sister were the owners of the lot. As we have already shown, Roberson was not the agent of Daly to make improvements and had no authority whatever to enter into contracts for the same that would bind Daly. The case therefore is not like that of the owner who stands by and expressly consents to or silently acquiesces in contracts for improvements entered into by mechanics or materialmen with one who claims to be his agent or one who represents himself to be the owner without repudiating the agency or revealing his own identity as the owner and disclosing the condition of his title. Of course, in such cases the owner would be estopped from denying the agency or setting up his legal title to the injury of those who had been thus misled by his conduct in the premises. But such is not this case, and the doctrine of estoppel cannot be invoked against 'the appellant.' III. We cannot see that the issue of title as between appellant and Roberson, and as to whether appellant complied with his contract to furnish a warranty deed-and an abstract of title, is germane to this controversy. Such issue is not involved in this appeal. The judgment is therefore reversed and the complaints will be dismissed for want of equity.