Bethell v. Chicago Lumber Co.

Opinion by Clogston, C.: Plaintiff in error now insists that on the pleadings and findings of fact no judgment ought to have been rendered in favor of the plaintiff, defendant in error. The petition alleged a contract for material with the husband of the owner, Annie Bethell, and asked for the foreclosure of the mechanics’ lien against said property under the contract. The. plaintiff in error insists that, as the findings show that John Bethell was a contractor, and had a written contract with his wife, Annie Bethell, to erect the improvements and furnish the material and to receive certain compensation therefor, if defendant in error had any claim whatever and was entitled to have any lien against said property, it must be as sub-contractor, instead of a direct lien as contractor. Section 630 of the civil code is as follows: “Seo. 630. Any mechauic or other person who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under - contract with the husband or wife of such-owner, perform labor or furnish material for erecting, altering or repairing any building or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, or plant and grow any trees, vines and plants, or hedge or hedge fence, or shall build a stone fence, or shall perform labor or furnish' material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole piece or tract of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such labor or material, fixtures or machinery. Such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvements, or either of them, subsequent to the commencement of such building, [234] the furnishing or putting up of such fixtures or machinery, or planting and growing of such trees, vines or plants, or hedge or hedge fence, or stone fence, or the making of any such repairs or improvement; and if any promissory note, bearing not exceeding twelve per cent, interest per annum, shall have been taken for any such labor or material, it shall be sufficient to file a copy of such note, with a sworn statement that said note or any part thereof, was given for such labor or material used in the construction of any such building or improvement, in the office of the district clerk, and it shall be necessary to file a list of items used, and the lien shall be for the principal and interest aforesaid, as specified in said note.” The language used in this statute is broad enough to include all contracts made by the husband or wife of the owner of the property for the purchase of material or the erection of improvements thereon, and when a contract is made and the material furnished or improvements made, the party making or furnishing such improvements is entitled to a direct lien against the property. It is true that the husband might contract for the material as a contractor in such manner that the person furnishing material thereunder would be entitled only to a sub-contractor’s' lien, but when material is furnished under such circumstances there ought to be some knowledge conveyed to the party furnishing the material, of the existence of such a contract. Where the husband of the owner of the property purchases material, which the statute provides he may do, the person furnishing the material under such a contract may presume, and he has the right to do so, that it is furnished to the husband of the wife, to be charged to her and upon her property, and has a right to file a lien to secure its payment. The findings show that the plaintiff company, defendant in error, had no knowledge of any contract by and between Annie Bethell and her husband in relation to the erection of these improvements. The want of this knowledge continued until after the time had expired in which a sub-contractor’s lien could have been filed against the property. It is true that a person dealing with an agent must at his peril know the rights of the agent in the premises, and if this contract had been [235] made with any person other than the husband, this lien could not be upheld, but as the husband under the law has the right to contract, this rule cannot be applied in this case. The parties can rely upon the presumption that they were not dealing with the husband as agent, but as owner under the statute. If the claim of the defendants can be upheld, then the way is left open for great wrongs and frauds to be perpetrated. A contract is entered into between husband and wife; no disclosure is made of the extent of that contract; material is furnished; afterward, when the time for filing a sub-contract- or’s lien has expired, a contract is produced under which the building was erected, the wife receiving the benefit of the transaction, and the husband and wife thereby defeating the lien law. Plaintiff in error also insists that what purported to be a mechanics’ lien was not sufficient as a statement under the mechanics’-lien law to establish a lien. In this we think the plaintiff is mistaken. It contained an itemized statement of account; this account shows that the material was charged to John Bethell, but it was shown that it was contracted for by John Bethell for his wife, and for the erection of these buildings on her property. The bare fact that after this contract was made the lumber was charged to John Bethell for convenience, was not material, and could not change its effect. The statement constituting the contract and the lien were all included in the affidavit, and plaintiff in error contends that because of this fact, that there was no lien. It does not to us seem material whether or not the facts alleged and set out, which if true, entitled the claimant to a lien, are set out in a statement by themselves, and an affidavit attached thereto, or whether all these facts are embraced in the affidavit itself. Plaintiff in error also insists that as certain matters in said action had been referred to a referee, and his report filed, that no action could be had or findings made by the court until said findings and report of the referee had been set aside in some manner. In this we think the plaintiff is in error. Some questions of fact were referred to the referee; he made find [236] ings on these questions and reported the same to the court; but it seems there was no action taken by either plaintiff or defendants looking toward a confirmation or setting aside of said report. It was abandoned for all the purposes of this trial, and no attention was paid thereto. It was tried upon every question of fact and submitted to the court as though no reference had ever been made. Under such circumstances, we think it is not material whether the report had been set aside or not. At best, the report of the referee was only to furnish information to the court. The court might regard it or disregard it, at its pleasure. We are therefore of the opinion that no error was. committed which is shown by the record. It is recommended that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.