Citation Numbers: 11 R.I. 173
Judges: DURFEE, C.J.
Filed Date: 2/17/1877
Status: Precedential
Modified Date: 1/13/2023
This is a petition for the enforcement of a mechanic's lien against the real estate of the defendants. The defendants are husband and wife, but they own, or did own when the lien is alleged to have accrued, the real estate as tenants in common. The lien is claimed on account of a house built upon the real estate under a contract in writing made with the wife, and which purports to bind only the wife. *Page 174 The husband was not at home when the contract was made nor when the work was commenced. He came home the day after the work commenced, and at once put a stop to it and sent away the workmen. Afterwards, however, he withdrew his opposition and allowed the work to go on, witnessing its progress at different times, and on one or more occasions directing certain things to be done in variation from the contract, but the additional expense caused thereby was paid by his wife. He came with his wife from New York at one time when she came for the purpose of making a payment under the contract, and the testimony satisfies us that he was present when the payment was made. There is, however, no testimony to show that he ever expressly assumed the contract or promised to fulfil its stipulations. Neither do we find any testimony to show that the contractor regarded him during the progress of the work as a party to the contract. He would naturally have asked him to sign it, if he had wished to bind him by it. He did not do so; but was content with simply a permission to go on under the contract as it was. Indeed, he does not seem to have doubted the capacity of the wife to contract in her own behalf. He says in fact that she told him the money to be used was hers, left to her by her former husband, and that she didn't want her husband to have anything to do with the matter.
The petitioners contend that it is enough to bind the estate of the defendants that the husband acquiesced in the work. Doubtless it is enough if he acquiesced under circumstances which authorize us to infer a promise on his part to pay for the work, or even in the absence of circumstances to repel such an inference. The difficulty in this case is, that here there was an express contract, made not with the husband but with the wife, and purporting to bind only the wife; and there is no positive evidence to show either that the husband had any reason to suppose that the contractor intended to look to him personally, or that the contractor did entertain such an intention, until after the work was done or nearly done, and the wife failed to fulfil her contract. Under such circumstances we do not feel authorized to infer from the acquiescence of the husband, or rather from the withdrawal of his opposition to the work, and from the few directions which he gave in regard to it, a promise on his part to *Page 175
pay for it, either severally or jointly with his wife. On the other hand, we think the most that can be inferred is that when he found his wife had made the contract, and that the petitioner Cameron was willing to perform it trusting to her responsibility, he withdrew his opposition and permitted the work to proceed under that understanding. In this view the petition must be dismissed; for under our statute (Gen. Stat. R.I. cap. 166, § 1) the lien accrues only when the work is done "by contract with or at the request of the owner" of the land, or "by the husband of such owner with the consent of his wife in writing." In this case we think the wife alone made the contract, and it is not even claimed that her contract or request made independently of the husband is sufficient to entitle the petitioners to a lien. And see Hayes v. Fessenden,
Petition dismissed.
NOTE. — MATTESON, J., did not sit with the court when the above petition was heard.
After this opinion had been given, the complainants moved for a rehearing of the cause.