Frohlich v. Carroll

Hooker, J. Defendant Margaret Carroll purchased on March 14, 1898, lot 16 of block 12, etc., in the city of Detroit, for $2,746.40. The deed contained building restrictions, requiring her, in case of building, to erect not more than two single dwelling-houses fronting Avery avenue, and costing not less than $2,500 each if frame, and $3,500 each if brick. She afterwards obtained written permission from the grantors to have three houses built upon the lot, and on April 12, 1898, defendant William Cockerline entered into a written contract to construct the same. This contract purports to have been between him and [564] Nicholas Carroll, who is, and then was, the husband of Margaret Carroll. Cockerline testified that he signed this contract upon the representation that Nicholas Carroll owned the premises. The complainant, a manufacturer of sash, blinds, doors, etc., contracted with Cockerline to provide material and do certain work in his line upon the houses, and this he did. Not receiving his pay, complainant sought to place a lien upon the premises, and seasonably filed a statement with the register of deeds setting up the fact of his contract with Cockerline; that he (Cockerline) had the contract for building a dwelling upon said premises; that there was due him thereon for materials and labor furnished under said contract $499.06; and that Margaret Carroll was the owner of the premises. This bill was filed to enforce the lien. Several other persons were made defendants, most of whom were subcontractors, who filed answers, and defendant Yeomans Lumber & Box Company filed a bill against Margaret Carroll, setting up their respective liens. The circuit court made a decree adjusting these liens, with provisions for their enforcement, and the defendant Margaret Carroll has appealed. The court found that Nicholas-Carroll entered into this contract on behalf of his wife; in other words, that it was Margaret Carroll’s contract; and, notwithstanding counsel’s statement that “there is not a scintilla of evidence to that effect in that certified to this court,” we think the correctness of the court’s conclusion is beyond question. Margaret Carroll owned the land; she knew the buildings were to be erected thereon; she wanted them built; she used funds of her own, and borrowed more, to pay upon the contract; she drew her own personal checks to the complainant and other contractors; and she still owns the premises. She thereby recognized the contract as hers. The case is like any other case of contract made by an agent where the principal is undisclosed. See 1 Am. & Eng. Enc. Law (2d Ed.), 1139; Mechem, Ag. § 701, and cases cited. If it be said that the authority is not shown, [565] we reply that we consider the record full of evidence tending to show it. It was unquestionably -her property, and she acquiesced in what her husband did in relation to it. It is said that Margaret Carroll did not furnish all of the money used; but we think it is immaterial even if her husband furnished some of it, as he claims to have done. We do not discover that it is claimed that complainant did not perform his contract, except as to doors and drawers of the china closets, amounting to $24.79. It is, however, claimed that he was paid $15 for which he has not given credit. The item of $15 was overlooked; it having been credited to a running account by the bookkeeper, and not brought to complainant’s attention. It may have been proper to apply it in reduction of complainant’s claim, but should not invalidate his lien, under repeated decisions. The item of $24.79 was not furnished, but it was not complainant’s fault, as dimensions were not furnished him, and he has always been ready to furnish it when dimensions and details are given. We. think the learned circuit judge was correct in sustaining complainant’s right to a lien. All of the other lienors, except the Yeomans Lumber & Box Company, filed liens against Margaret Carroll. Its statement mentioned Nicholas Carroll as the debtor, in reliance upon the information that he owned the premises, .and the supposition that he contracted in his own right. Notice of the lien was served upon Nicholas Carroll, who seems to have had full authority to represent his. wife. We think it should be held to bind her in this instance. The testimony of both Carroll and his wife, when taken in ■connection with the undisputed facts, convinces us, as it ■did the circuit judge, that the Carrolls have made a deliberate attempt to defraud the contractors who file these claims. The pretense that Mrs. Carroll gave to her husband $2,500, and paid him $800 more that she owed him, so that he might build houses of his own on her land, is too flimsy for credence; and we think, furthermore, that she is bound by the lien of the Yeomans Lumber & Box [566] Company, and notice thereof given to her husband, and that she should not be permitted to take advantage of technical mistakes which were clearly due to deceit. The court found that the contract price was $3,222; that defendant was entitled to damages for sundry defects, $204.16; leaving $3,017.84. The court’s computation was $3,018.54. Apparently, this was an 'error of 70 cents. The payments amounted to $2,862.09, leaving a balance of contract price unpaid of $155.75 to pay unpaid claims. The court found that the houses cost $332.85 more than the contract price, and that such amount and the damages allowed (i. e., $204) made a' total of $536.85,—substantially 15 per cent, of the contract price. He therefore reduced these liens to 85 per cent, of the amount due upon the claims, and allowed them. He sustained these liens as to the excess over $155.75, upon the finding that payments to that amount had been unwarrantably made. Counsel for defendant Carroll says in his brief: “ The court below was in error in holding that when the contractor makes a sworn statement, and payments are made in accordance with the same, and it turns out'in the end that there is a deficiency, then such payments are illegal, because not prorated with others who furnish labor and material after such payments. The statute as to pro rata only applies to payments made in the absence of any statement, and this court held nothing to the contrary in the case of Fairbairn v. Moody, 116 Mich. 61, 65 (74 N. W. 386, 75 N. W. 469). The court below found that $2,862.09 had been paid by Nicholas Carroll upon the Cockerline contract, and that he was entitled to $204.16 damages, which would leave a balance of only $155.75 on the contract price; yet he orders a lien for $735.-43, and interest since November 1, 1898, with costs, including $90 solicitors’ fees. On the merits alone, had the case been against Nicholas Carroll, the decision ought to have been in his favor; but, as against Margaret Carroll, the decision below simply amounts to confiscation.” Counsel for the complainant state in their brief that the learned circuit judge spent much time in computing the amounts due to the several parties. The appellant’s [567] counsel has not shown us wherein there is an inaccuracy in the computation, or that he improperly applied the rule requiring a pro rata payment. He only insists that all payments were lawfully made, and does not give a list of payments, or their dates, or in any way attempt to show wherein the conclusion of the circuit judge was wrong. We think the cases cited by complainant’s counsel1 impose upon the defendant the duty of protecting all subcontractors of whom he has notice; and as counsel has not pointed out the mistakes of the circuit judge, and the evidence upon which his computation should be corrected, we must decline to sift them out of a record of 350 pages. The decree of the circuit court subjects the liens to homestead rights, the Carrolls having occupied the corner house. It is obvious that they have no homestead rights in the other houses, and without discussing the propriety of allowing a homestead as against these liens, under the proofs, we pass the subject by saying that the parties were entitled to their liens against the other two houses, whether they were as against the corner house or not, and the defendant Carroll has no cause for complaint. We are of the opinion that the decree should be affirmed, with costs, and it is so ordered. The other Justices concurred. Footnotes [1] Viz.: Fairbairn v. Moody, supra; Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114).