case.

Wees v. Elbon, 61 W. Va. 380, 56 S. E. 611; United States Blow Pipe Co. v. Spencer, 61 W. Va. 191, 56 S. E. 345; 20 Am. & Eng. Enc. Law, 327; 27 Cyc. 362; Hoffman v. McFadden, 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. St. Rep. 512, 82 N. W. 112; West Virginia Bldg. Co. v. Saucer, 45 W. Va. 483, 72 Am. St. Rep. 822, 31 S. E. 965.

Messrs. Price, Osenton, & Horan for appellee.

Williams, J., delivered the opinion of the court:

J. W. Milligan sued Mrs. Eliza Alexander in the circuit court of Pocahontas county to enforce a mechanics' lien against a lot of ground and a building erected thereon by him, situated in the town of Marlinton. From a decree granting relief to plaintiff, defendant has appealed.

The amount of the lien claimed is

$1,050.93. The defense is (1) that defendant did not contract for the erection of the building and did not authorize anyone else to do so as her agent; and (2) that the building was not put up in a workmanlike manner. The court scaled plaintiff's account because of imperfect work and bad material used, and decreed a lien upon the property for the sum of $910.43, and also decreed that it be sold to satisfy the lien, if not paid in sixty days.

The contract for the erection of the building was oral, and was made by said Milligan with John Alexander, husband of defendant. The case turns upon this question: Was her husband defendant's agent in making the contract?

A mechanics' lien is a creature of statute, and in or- Mechanics' der to obtain such lien-when lien the require

obtainable.

ments of the statute must be complied with. A builder cannot have a lien simply by erecting a building on the land of another, independent of contract. The work must be done "by virtue of a contract with the owner or his authorized agent." Code 1906, § 2, chap. 75. Defendant and her husband both testified that she did not authorize him to contract for the building. The building was erected for a bowling alley, and is occupied by Dwight Alexander, defendant's son, free of rent. The contract price was $1,500, but plaintiff claims that he did extra work in putting up an addition to the building, which made his account amount, in all, to $1,738.03. Partial payments were made in June and July, 1909, amounting to $736.10.

Milligan testifies that Mrs. Alexander was present a good deal of the time when the contract was being made; that she said to him, on one occasion when the work was building put up on Dwight's acgoing on: "We are having the count; he wants to keep on with the amusement business," and that she was present, at the building, when the agreement was made to put up an addition to it for a boiler room, and made suggestions in regard to the manner of its construction. Concerning this latter fact Milligan is corroborated by L. W. Herold, who was present and heard the conversation. Mrs. Alexander denies that she was present when the original contract was made, but admits that she was present when the contract for the boiler room was made, and that she was at the building with her husband frequently when the house was being erected. She denies giving instructions, or making suggestions in regard to the

-husband as agent for wife.

building of the boiler room. The chancellor had to determine the facts upon the conflicting testimony of the witnesses, and we cannot say that his finding, which must have been that the facts were as Milligan had testified, is erroneous. Then, do the facts and circumstances prove agency of the husband? We think they do. It is true that agency of the husband will not be presumed from the marital relations alone. Boisot, Mechanics' Liens, 277; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. Rep. 513, 82 N. W. 112. But the agency may be established by circumstantial evidence, and we think the and we think the facts and circumstances are such as to warrant the conclusion that, in making the contract with Milligan, John Alexander acted as agent for his wife. Certainly such view is consistent with justice. Mrs. Alexander knew that her husband had contracted for the erection of the building on her lot, and she did not object to it. The building was going up in sight of her dwelling house, and she was frequently present while the work was going on. In view of what was said and done by her husband and plaintiff, in her presence and with her knowledge, she is presumed to have authorized her husband to act

Evidenceconsent to erection of building.

as agent for her in the premises. The property in question is Mrs. Alexander's separate estate, and the statute (Code 1906, § 3, chap. 66) permits her to contract freely with reference to the improvement of it, and it would be inequitable and unthe just, under circumstances

shown to exist in this case, if she should be permitted to reap the benefit of plaintiff's labor without consideration. That she derives no revenue from the building is not material. Her son is occupying it free of rent, but he does so with her consent. She has the right to de

mand rent, and cannot complain because she is getting no revenue from it.

"Proof that the wife knew of the work ordered by her husband while it was being done, and gave directions to the mechanics about it, has usually been considered sufficient to show that the husband acted as the wife's agent." Boisot, Mechanics' Liens, § 277. The rule stated in the text is supported by the following cases: Bradford v. Peterson, 30 Neb. 96, 46 N. W. 220; Rand v. Parker, 73 Iowa, 396, 35 N. W. 493; Wheaton v. Trimble, 145 Mass. 345, 1 Am. St. Rep. 463, 14 N. E. 104; Schmidt v. Joseph, 65 Ala. 475; Collins v. Megraw, 47 Mo. 495; Leisse v. Schwartz, 6 Mo. App. 413; Bodey v. Thackara, 143 Pa. 171, 24 Am. St. Rep. 526, 22 Atl. 754.

Under circumstances similar to those disclosed in the case under review, some courts hold that the wife is estopped to deny that a mechanics' lien was thereby created upon her separate estate. Schwartz v. Saunders, 46 Ill. 18; Greenleaf v. Beebe, 80 Ill. 520. The same result is reached whether the wife is made liable by estoppel or on the score of agency, presumed from her knowledge of and acquiescence in the improvement made on her land by her husband. Inasmuch as the statute gives a married woman the right to contract for the improvement of her property as freely as if she were feme sole, we think it is more consonant with reason to hold her liable on the ground of her husband's agency. Such view also harmonizes with the great majority of the decisions.

There is a good deal of testimony tending to prove that some of the work on the building was not done in good workmanship style, and the court was justified in scaling plaintiff's demand on account of it. We find no error in the decree, and will affirm it.

§ 8. Contractor, when a necessary party to a suit by a subcontractor or materialman, 1034.

§ 9. Acceptance of collateral security by contractor, effect of, 1034.

II. Enforceability of lien considered with reference to the extent of certain powers conferred on the husband:

§ 10. Generally, 1034.

§ 11. Powers of husband intrusted
with the management of
his wife's estate, 1034.
12. Powers of husband appointed
as his wife's general agent
with regard to the erection
of the building in question,
1035.

III. Evidence from which the husband's agency is or is not inferable:

§ 13. Generally, 1035.

§ 13a. Quality of evidence requisite to prove the husband's agency, 1036.

§ 14. Wife's knowledge of the husband's acts, 1037.

1. Generally.

1. Principles on which the enforceability of a lien depends.

The general principles upon which the enforceability of a mechanics' lien depends in cases where the claim is 4 A.L.R.-65.

III. continued.

§ 15. Wife's failure to object to the husband's acts, 1038.

§ 16. Wife's consent to or approval of her husband's acts, 1039. 17. Wife's giving of directions with regard to the work, 1042.

§ 18. Wife's offer of suggestions concerning the work, 1045.

§ 19. Wife's exhibition of interest in what was done under the contract, 1046.

§ 20. Cost of work or materials defrayed by wife's money, 1046.

§ 21. Objection by wife to performance of the contract, 1049. 22. Miscellaneous circumstances tending to prove agency of husband, 1049.

§ 23. Miscellaneous circumstances tending to disprove agency of husband, 1050.

24. Miscellaneous circumstances not tending to prove husband's agency, 1050.

§ 25. Credit given to husband alone; probative significance of this fact, 1051.

IV. Adoption of the husband's contract by the wife. Estoppel of wife to deny her liability: 26. Ratification, when predicable,

1052.

§ 27. Acceptance of the benefits of the contract, 1053.

§ 28. Estoppel of wife to resist enforcement of lien, 1054.

V. Specific statutory provisions operating so as to render the husband the agent of his wife:

§ 29. Enactments relating to the effect of the owner's "consent," 1058.

§ 30. Other enactments, 1062.

founded upon a contract made with the husband of the owner of the property in question are as follows:

(a) The effect of the statutes by which married women have been empowered to hold property in their own. right is to abrogate. so far as that

property is concerned, their commonlaw incapacity to bind themselves by contract.

(b) Unless the language of the particular lien law in question requires a different conclusion,1 the category of contracts to which the enlarged competency of married women applies is deemed to embrace those which pro

1 In Fetter v. Wilson (1851) 12 B. Mon. (Ky.) 90, where the Kentucky Acts of 1831 and 1834 (3 Stat. Law, 409-411), under which the liens in question were claimed, gave a lien only upon the interest of the "employer" in the premises on which a house was built or repaired, the court took the position that, before the interest of the wife in the land could be brought under the lien, it must be shown that she was the employer of those who worked on the house or furnished the materials, and that, being a feme covert, she was incapable of contracting for herself, and consequently could not, in a legal sense, become the "employer" of others to erect a building on her land or to furnish materials for it. This decision was followed in Pell v. Cole (1859) 2 Met. (Ky.) 252.

But in Salisbury v. Wellman Electrical Co. (1917) 173 Ky. 462, 191 S. W. 289, it was observed: "Since the enactment of the Kentucky Statutes, § 2128 (Act of 1894), married women have the same power as unmarried women or men to create liens upon their property for its improvement; and where a married woman accepts the material and work placed upon the property, the law implies a promise on her part to pay for them."

2 "There can be no doubt but appellant, although a married woman, had the right to bind herself for labor and materials furnished in the erection of buildings upon her separate property. If she could in person contract, she clearly had the power to authorize her husband to contract in her behalf; or, if her husband contracted for the work and materials to be furnished on her separate property, with her knowledge, consent, and approval, we are aware of no principle that would shield her or her property from the payment of an honest debt, thus incurred." Greenleaf v. Beebe

vide for the performance of work upon a building or other improvement, or for the supply of materials needed for such building or improvement.2

(c) Contracts of this description are equally binding upon married women, whether made by them personally, or by their agents.3

(d) Married women may appoint sylvania Married Women's Property Act of 1848, held that, as a contract for the improvement of, or repairs to, the separate estate of a married woman, was only constructively within its purview, the claim of a lienor must aver specifically the purpose of the contract. S. P. Kuhns v. Turney (1878) 87 Pa. 497.

In Farley v. Stroeh (1896) 68 Mo. App. 85, the general rule established by Macfarland v. Heim (1895) 127 Mo. 327, 48 Am. St. Rep. 629, 29 S. W. 1030, that a married woman could not appoint an agent in respect of property not held by her as her separate property, was declared to have been modified pro tanto by the statute relating to mechanics' liens, which provides that "every person, including all cestuis que trust, for whose immediate use, enjoyment, or benefit any building, erection, or improvement shall be made, shall be included by the words 'owner or proprietor' thereof under this article, not excepting such as may be minors over the age of eighteen years, or married women." The contractual power conferred by this provision upon a married woman was held not to be limited to cases where she has a separate estate.

3 "What she could do herself, she could certainly do through her agent. Hence, the suggestion that a wife is incapacitated from appointing an agent to represent her in making a contract for such improvements seems to be without force." Carthage Marble & White Lime Co. v. Bauman (1891) 44 Mo. App. 386.

In Greenleaf v. Beebe (1875) 80 Ill. 520, it was held that a complaint was not demurrable which alleged in substance that the husband, acting as agent for the wife, with her full knowledge, consent, and approval, had made with the plaintiff the agreement in pursuance of which the labor and materials in question had been furnished.

In Vail v. Meyer (1880) 71 Ind. 159, the following remarks were made: "It