Farmilo v. Styles , 59 N.Y. Sup. Ct. 450 ( 1889 )

Landon, J.

The contract was in the name of the husband, but, as the wife was the undisclosed owner, if the husband was in fact acting as the agent of his wife, it was competent for the plaintiffs to file their notice of lien and proceed against her. We think the request of the plaintiffs to go to the jury upon the question whether the husband did not act as the agent of his wife should have been granted. The testimony of the wife is to the effect that her husband procured this house to be built for her, and at her request, and that she furnished him from time to time with money to pay for it, as the work progressed. The only difficulty in the ease arises from her testimony that she made a contract with her husband that he should build it for the sum of $3,000, and that the money she paid him was upon this contract, except the sum of $290, which she had previously lent him, and she applied this indebtedness to complete the total payment. The contract, she says, was oral. She further testified that she had several lots and buildings in Cohoes; that her husband had none; that she never had occasion to employ anybody except her husband to do any work on any of her buildings; that she left that to her husband to look after. How, this secret contract between herself and her husband, by means of which she could collect the old debt her husband owed her, and deprive the plaintiffs of their just pay, does not commend itself to judicial favor. Possibly it was an afterthought. The testimony upon which it rests ought to be subjected to that scrutiny which her interest and her advantage suggest, and, if so, possibly the jury would make a finding upon it in accord with substantial justice. The judgment is reversed, and a new trial granted; costs to abide the event. All concur.