Doane v. Bever

The opinion of the court was delivered by Ellis, J. : The principal question in this case was whether Gustave Schwartz acted as the agent of defendant Bever in making the purchases which constituted the basis of the action, or whether such, purchases were made upon his own account and credit. If the plaintiffs chose to make Schwartz their-debtor and to sell their goods upon his credit, the461 mere fact that they were to be used in betterments upon the premises of the defendant Bever would not entitle them to a lien thereon. (Manufacturing Co. v. Best, ante, p. 187, 65 Pac. 239.) In substance, the ■court below so instructed the jury. As to the matter of agency, the following instruction was given : “The burden of proof is upon the plaintiffs in this case t.o establish the fact of the purchase of material as alleged, and also to establish the fact of an agency upon the part of Gustave Schwartz, if you find that he made the purchase for the defendant Bever; that is, if you should believe from the evidence that the defendant himself did not make the purchase of this material, but that it was purchased by Gustave Schwartz, then, before you can find against the defendant in this case, you must believe from the evidence that defendant Schwartz, when he made this purchase, was acting for the defendant Bever, and as his agent in making this purchase. In determining the question ■of agency between the parties that is raised in this case, you may take into consideration all the evidence in the case, and all the circumstances which, in your judgment, throw any light on this question.” It is true that the jury were not very fully advised as to the rules of agency applicable to the case at bar, but as no requests were made in relation thereto by the plaintiffs they cannot be heard to complain at the meagerness of the instructions actually given. The general finding of the jury being against the plaintiffs, and the evidence being sufficient to sustain it, we are compelled to treat such finding as a determination in the court below that the plaintiffs sold the material to Schwartz upon his individual credit, and not to him as agent for the defendant Bever. The defendants in1 error insist that the lien was defective in that it was not shown to have been filed in the office of the clerk of the district court. We have [462] treated the case as though it had been properly filed but that such fact does not appear because of a mere omission in the record. The plaintiffs in error also urge that they are entitled to a lien because confessedly the material supplied by them was used in betterments on the premises of defendant Bever. The argument, although made with force and ingenuity, is without weight. They must secure a lien under the statute or not at all. The judgment of the district court is affirmed. Smith, (Cunningham, JJ., concurring.