Weber v. Weatherby

Stewart, J., delivered the opinion of the Court. This appeal involves the’ interpretation of the 61st Article of the Code, in reference to the mechanics’ lien. No question is made, as to the form or regularity of the proceedings, under the law, but the claim for the articles furnished by the appellees, although used in the house of the appellant, is resisted by him, upon the ground, that the articles were not furnished by his authority, and that the provisions of the law afford no lien on his property for the same. There is no doubt, the claim of the appellee must come within the scope of the law, or the lien cannot be maintained. Whilst the house of the appellant was in the course of erection by him, he contracted to sell it to Ranstead. By the terms of the contract, the appellant was to finish the house, [660] like the one adjoining; certain payments were to be made by Ranstead, and other stipulations were incorporated in the contract; the sum of $100 was deposited by Ranstead, as a forfeit, provided in case of non-compliance on his part. This contract was subsequently abandoned by Ranstead, because of the alleged inability of Weber to finish the house by the time agreed npon, and he refused to take the house. Weber seemed to have acquiesced in the abandonment of the contract, retained the $100 forfeit, and with it the house and the fixtures in question, which had been ordered by Ranstead, and furnished and delivered by the appellees on the premises, and put up in the house during the pendency of the contract. The agreement between the parties for the sale of the house, appears to have been mutually waived, and no question is presented in regard thereto, except as it may relate to the creation and imposition of the lien for the materials furnished, whilst the contract was in force. According to the evidence, the furnace for the house adjoining cost $360, whilst the charge for the one ordered by Ranstead, was $470. As the house, agreed to be sold, was unfinished and had to be completed by Weber, according to the contract, like the.one adjoining, including of course such a furnace as was contained in that; if precisely the same sort of furnace had been directed by Ranstead, and had been put up in the house in the possession of Weber, with his knowledge and without objection, it would be a reasonable inference that it was done with his sanction and approval, and by his authority. Under such circumstances there could be no question of his liability, according to the contract, to pay for the same, and that it would fasten a lien on the house to which the fixture was attached, according to a fair construction of the provisions of the law. This would be done, by treating Ranstead as the agent, in this particular, of Weber, the owner of the property. In our opinion, the fact of the extra cost of the furnace, ordered by Ranstead, and put up in the house, under the cii’cumstances, does not alter the relations of the parties, or modify the law applicable thereto. In either case, Weber [661] and liis house are responsible; the former, according to the principles of natural justice, and the latter, under the- provisions of tlie statute, for the act of Ranstead. The materials must be considered as furnished under his authority, and he is estopped by his own conduct from disputing the demand. To allow him to repudiate the transaction, would be enabling him by reason of the contract with Ranstead, to perpetrate a fraud upon the mechanic or person, furnishing materials for his house, and to appropriate the property of others to his benefit. (Decided 23d June, 1871.) The provisions of the law applied to the transaction, give the lien, and make the property upon which the building is erected, answerable for' work done or materials contracted for and furnished, accordingly, by the authority of the owner or his agent. Weber owning the house, to be constructed and finished by him, permits Ranstead, after the contract with him and during its pendency, to intervene and assist in the construction of the building, to this extent at least, by accepting his agency and recognizing his acts, by interposing no objection thereto; Weber’s adoption of Ranstead’s acts, permitting the fixtures to be attached, without notice of objection, makes the house answerable for the same, and creates the lien on the property for its payment. Objection is taken by the appellant in his brief to the language of the prayer, granted by the Court below, as invasive of the province of the jury, iu directing them to find for the appellee, for the entire amount of his claim. There was no dispute as to this and no conflict of testimony, and the jury were substantially instructed upon the other hypothetical facts, referred to in the prayer, to find for the appellee, and the terms employed were immaterial under the circumstances of the case. Wc have carefully examined all the authorities referred to and within our reach, and we think the law applied to the facts, justified the instruction of the Court. Judgment affirmed.