Einstein v. Jamison ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

To charge the separate property of a married woman with a mechanic’s lien for work and labor done or materials furnished, it must be alleged in the claim and proved on the trial, that the work or materials were necessary for the reasonable improvement or repair of such separate estate, and substantially that they were so applied, and that the same was done and furnished by her authority and consent: Shannon v. Shultz, 6 Norris 481; Kuhns v. Turney, Id. 497.

This claim was for materials furnished and used in and about the alteration and repair of the wife’s house and in building an additional story to the kitchen. All the necessary facts were sufficiently averred in the claim filed. The defendants in error plead specially, averring that she made no contract or agreement for the work, and denying that she authorized the same to be done or agreed to pay for the work or materials; and alleged the same was done without her authority and without her consent. There was no denial that the work and materials were reasonable and necessary for the repair and improvement of her real estate. On this plea the parties went to trial. It presented the only issues the jury was sworn to try.

The contractor testified that Mrs. Jamison was present during a part of the time the contract for the job was being inade; that during its progress she came to his house to get him to do the work, and several times sent for him to - come and do it; she was frequently present directing as to the manner in which she desired the work done, and told him when she would make payment; that she went to the plaintiff in error and procured some of the lumber.

The plaintiff in error testified that he was frequently at the house during the progress of the work, that she was superintending it and ordering changes; and that she ordered shingles, boards and flooring from him, - and afterwards promised to pay him.' Another witness testified that he plastered the building under her instructions and she promised to pay him.' It was also shown that she paid the plaintiff in error a small sum to apply on his bill. The defendants gave no evidence tending to show that the improvements were not necessary for the proper and reasonable improvement and repair of her house, and none showing that all the materials therefor were not furnished by her authority and consent, and part of them on her express request.

In the point covered by the second assignment of error, the court was requested to charge that “ she was liable for any materials which were furnished by the plaintiff on her orders, if any.” As this point ignored other facts necessary to establish her liability, a simple refusal to so charge would not have been error; but the learned judge proceeded to say “she must not only have ordered them, but promised to pay for them, and they must, have been necessary.” In saying she must have “ promised to pay for them,” we think the learned judge erred. The other necessary ingredients being proved, the law will imply a promise to pay. While courts should carefully protect married women in the enjoyment of their separate property and not permit it to be unjustly charged with an encumbrance, yet they should not be permitted to enhance the value of their property at the expense of an innocent and confiding creditor. If the materials were furnished and used in the improvement of her property by her directions or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor," the law-will give a lien thereon for the value of the materials. In so far as the answers and charge covered by the assignments are in conflict with this opinion, the assignments are sustained, beyond that they are not sustained.

Judgment reversed, and a venire facias de novo awarded.