Anderson v. Volmer

Philips, C. This is an action to enforce a mechanic’s lien against the property of tbe defendant, Kate Volmer. Werner and Sbinnick were tbe contractors, and the plaintiff furnished material. Tbe petition is unobjectionable and tbe answer tenders tbe general issue. Tbe case was tried by tbe court sitting as a jury. Verdict and judgment for plaintiff, from which tbe defendant has appealed to this court. I. Tbe first question presented by this record for determination is, as to tbe sufficiency of tbe notice given by plaintiff to defendant to effect tbe alleged lien. In •order to subject tbe property of defendant to tbe lien of plaintiff for materials furnished to tbe contractors for •the building, tbe statute (R. S. sec. 3190), provides that tbe lienor “ shall give ten days notice before tbe filing of tbe lien * * * . to tbe owner or agent, * * * that beholds a claim against such building, * * * setting forth tbe amount and from whom tbe same is due.” There is no pretense in this case that this notice was given tbe defendant in person. But tbe court found that notice was duly served on one S. N. Bonner, and that be was tbe agent of defendant. What is tbe evidence of tbe existence of this agency % I am unable to find from tbe record any declaration or act of tbe defendant admitting such agency. Tbe evidence merely shows .that tbe bouse was built for defendant. She was, during this time, residing in tbe state of Colorado, and tbe transactions in question were bad in Kansas City, Mis [406] souri. Bonner paid on the contract some money to the contractors, and participated in the settlement with them for the work. He, also, stated that he was agent for defendant. Bnt it is well settled law that an agency can not be established by the mere acts or declarations of the imputed agent, nor from the mere fact that he assumes to act as agent. Craighead v. Wells, 21 Mo. 404; Golson v. Ebert, 52 Mo. 260. The burden of proof as to the existence of the agency rests on the plaintiff. Cravens v. Gilliland, 68 Mo. 28. While it is true that direct evidence of the agency may not be essential, but its existence may be inferred from facts and circumstances, yet such facts and circumstances certainly ought to be of that character which tend to show that the principal must have had some knowledge of the fact that the imputed agent was so acting in the principal’s behalf, and that he did not dis-affirm the act timely. But even if, in this case, the presumption could be indulged, that Bonner was acting for defendant in making the settlement and paying the contract money, the legal presumption, without more, would be that he was a special agent only to perform that particular office for defendant. It would not authorize the inference of a general agency, nor one for another purpose. As to such agent, the notice to Mm, to bind his principal, must have been given while the agency existed and not afterwards. Story on Agency, sec. 140, states the rule thus: “Notice to the agent, before the agency is begun, or after it has terminated, will not, ordinarily, affect the principal.” In Hayward v. Nat. Ins. Co., 52 Mo. 191, the court affirm this text: “ The notice must be given to the agent while the agency exists, and it must refer to business which comes within the scope of his authority.” See McDermott v. R. R., 73 Mo. 516. In other words, once an agent not always an agent. An agent for one purpose is not an agent for every other purpose. The plaintiff’s evidence, through the witness Werner, [407] was that he never knew of Bonner acting in any other matter for defendant than in making the settlement with him for the work done. The notice of the lien or claim was given to Bonner some time after the materials were furnished, and the settlement was made, and the money paid thereon. It was, therefore, after the imputed special agency had ended; and there is nothing shown by the record before us from which it could be inferred that Bonner was acting as agent for defendant when the notice was served on him, or of any act of ratification or recognition by her. The demurrer to the evidence should have been sustained. II. It is, also, alleged for error by defendant, that the court improperly admitted certain testimony on behalf of plaintiff. The record shows that the plaintiff testified as follows: “I made a contract with Werner & Shinnick to furnish them lumber in 1879. Among the bills sold them was a bill of lumber for the house of defendant, Kate Yolmer, but don’t know of my own knowledge that the lumber was used in this house. The account attached to the petition in this case is correct, due me ($82.05), and unpaid.” Cross-examination: “When I say the account is correct, I mean it is correct as' appears from my books. I know nothing as to its correctness except what appears in my books.” Defendant here objected to the testimony of the witness of what the books contained as they were the best evidence of their contents, which objection the court overruled and the defendant then and there excepted. The witness further testified, “I did not myself measure, deliver or sell the lumber for this house, neither did I keep the books referred to.” As a matter of course, unless the witness testify, of his own knowledge, touching the matter in issue, he cannot speak. His knowledge, he admitted, was derived from the books alone. He could not speak of the contents of the books. Cozens v. [408] Barrett, 23 Mo. 544. Without discussing the question as to whether the book itself would be admissible in evidence, it is enough to say that no sort of foundation was laid in this case for its admission, and it was wholly incompetent for the plaintiff to testify to facts which he obtained alone from the book. Penn’s Adm’r v. Watson, 20 Mo. 13; Hissrick v. McPherson, 20 Mo. 310 ; Briggs v. Henderson, 49 Mo. 531. TIuck, a witness for plaintiff, testified: “ The account for- hardware which is sued on here, is correct, due and unpaid, and I assigned it to the plaintiff and delivered some of it myself.” Cross-examination: “My testimony as to the correctness of this account is based solely on my books. I have no recollection of selling or delivering any of the items charged for defendant Yolmer’s house other than what my books show.” Here defendant Yolmer asked the court to exclude this testimony relating to the contents of the witness’s books, because the books are the best evidence, but the court refused this request and the defendant excepted. This evidence, for the reason above stated, was incompetent. III. Counsel for appellant has discussed other alleged errors, but as no such questions were raised in the trial court, they are not before us for determination. The judgment of the circuit court, for the errors deter.mined, is reversed, and the cause remanded for further proceedings in conformity with this opinion. All concur.