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of view, be regarded as being that of an element which, whenever its presence is established, demonstrates the nonliability of the wife, irrespective of whether the husband was or was not her agent.

IV. Adoption of the husband's contract by the wife. Estoppel of wife to deny her liability.

$ 26. Ratification, when predicable.

As already stated in § 13, supra, the language used in many of the cases cited in subtitle II. is often such as to render it uncertain whether the court regarded the evidence under review as tending to prove or disprove the existence of a contract to which the wife was already a party, or as tending to prove or disprove the fact of her having ratified a contract to which she had not previously been privy. Whenever there is any uncertainty concern

to show a contract made with her, or her agent for her, for the work and materials. The only contract put in evidence was between W. H. Brundage as the owner, and Moore Brothers, as contractors. It was reduced to writing. Mrs. Brundage was not a party to it. It does not purport on its face to be made in her behalf, or for her use and benefit, nor by W. H. Brundage as her agent. It was his personal undertaking, and shows that the contractors looked to him for pay. It is the accepted rule of law that an action to enforce a lien can only be brought against the debtor."

ing the rationale of the decisions, they are dealt with in that subtitle. In the present section only those will be reviewed which have been explicitly referred to the notion of a ratification.

Story on Agency, § 2512; quoted in Kansas City Planing Mill Co. v. Brundage (1887) 25 Mo. App. 268, where the court laid it down that, the contract "having been made by the husband in his own name, and not as agent, and one which he undertook to perform in his own right, there can be no ratification invoked in the case."

Some of the cases under this head illustrate the application of the general principles of the law of agency, that "a ratification can only be effectual between the parties when the act is done by the agent avowedly for, or on account of, the principal, and not when it is done for or on account of the agent himself, or of some third person;" and that a ratification of a contract cannot be inferred unless it appears that the party alleged to have ratified it had knowledge of all the material facts involved.2

In WILSON v. ANDALUSIA MFG. Co. ante, 1016, the conclusion of the lower court that the wife bound herself and her property, was disapproved for the reason that "her acts in causing changes of plans for the repairs, and her practically constant presence at the building during its alteration and repair, could not be referred to her ratification of the contract for materials that was not made or attempted to be made in her name or for her. On the


In others the question considered was simply whether a ratification could warrantably be inferred from the evidence introduced. There is explicit

contrary, that was made by her hus band alone, on his own responsibility." 2 Young v. Swan (1896) 100 Iowa, 323, 69 N. W. 566 (wife, who furnished husband with money to pay for all the materials required for a house, did not know that the lumber supplied by the plaintiff had been purchased on credit).


In Bartlett v. Mahlum (1893) 88 Iowa, 329, 55 N. W. 514, where the plaintiff claimed a lien for materials furnished to a person who had contracted with the defendant, William Mahlum, for the erection of a house, it appeared that he conducted the whole business in his own name and for himself, without disclosing any agency. The defendants relied upon the fact that a house and lot belonging to Mrs. Mahlum was conveyed as consideration for building the new house. But the court said: "Concede this to be true, yet Mrs. Mahlum knew that her husband was acting and contracting in his own name, and as owner of lot 5, and she at all times acquiesced therein and consented to what he did. Whatever may be their rights as between themselves, we must hold under the facts that, for all the purposes of this case, William Mahlum is the owner of said lot, and the person for whom the house was erected. The result must be the same, whether he acted as principal or agent, for Mrs. Mahlum fully author

authority for a doctrine that a ratification by the wife of a contract for the erection of a house cannot be inferred from the mere fact that it was to serve as a residence for herself and her children.*

27. Acceptance of the benefits of the contract.

In the footnotes are collected some cases in which the liability of the

ized and ratified all his acts relating to the transaction."

In Barker v. Berry (1880) 8 Mo. App. 446, the court observed: "The wife, in her domestic capacity, has her own sphere, and may certainly 'give directions how she wants the closets and pantry finished,'—which is all she did here,-without authorizing an inference that she adopts as her own the contract of another person."

In Bodey v. Thackara (1891) 143 Pa. 171, 24 Am. St. Rep. 526, 22 Atl. 754, a verdict for the plaintiffs was held to be warranted by evidence which showed that the wife assented to the contract in question, which was in fact made by her husband on her behalf and for her benefit; that the materials for which the lien was claimed were furnished with her knowledge and consent; that they were reasonably necessary for the improvement of her separate estate, and were used for that purpose; that the wife was frequently upon the premises, during the progress of the work, giving directions as to the materials that were being furnished by the plaintiffs, and also as to the manner of construction; in short, that she understandingly acted as though she herself, and not her husband, was one of the parties to the written contract.

See also Bumgartner v. Hall (1896) 163 Ill. 136, 45 N. E. 168, affirming (1895) 64 Ill. App. 45, where certain evidence (not stated) as to the wife's conduct during the progress of the work was held to show ratification.

In Wright v. Hood (1880) 49 Wis. 235, 5 N. W. 488, it was held that a ratification of a contract for the improvement of a dwelling house could not be inferred from evidence which merely showed that, when the workmen of the plaintiff went to the house to make measurements, the wife was in the kitchen at her work, and said they must not go upstairs yet, but

wife's property to be subjected to a lien was considered with reference to the general rule that a person who, with knowledge of all the material facts, accepts and retains the benefits of an unauthorized contract made by another person, assuming to act as his agent, may be subjected, on the ground of an implied ratification, to the obligations arising from the contract.1

wait a minute, as one of the young ladies was not out of the bedroom; and that at another time, when a load of these materials arrived at the house, she told the teamster to leave them outside, but when informed that it might rain, she told her children to carry them in. The court said: "There is nothing in these simple and common acts and words of the wife, in respect to the common and ordinary conduct of family and household affairs, at all incompatible with her entire exemption from all liability or responsibility in reference to these materials, so contracted for and furnished by and for the husband, although to improve her house, for the use of her family, including her husband."

4 Garnett v. Berry (1876) 3 Mo. App. 201.

Another point of view in which this element may be regarded is indicated by the declaration of the same court in Kansas City Planing Mill Co. v. Brundage (1887) 25 Mo. App. 268, that the existence of the express contract with the husband renders it impossible to charge the wife with "an implied obligation to pay for the improvement of her property, because it was her home."

1 In Schmidt v. Joseph (1880) 65 Ala. 475, it was held that a charge which was virtually equivalent to the sustaining of a demurrer to the evidence should not have been given, where it appeared that the materials in respect of which the lien was claimed had been selected by the husband for the house in question, that the wife was enjoying the use and benefit of them after they had been put into the house, and that she had not expressed any dissent from such


In Taggart v. Kem (1899) 22 Ind. App. 271, 53 N. E. 651, where the husband and wife owned the land in question as tenants by the entireties, it

$. 28. Estoppel of wife to resist enforcement of lien.

An examination of the decisions which have turned on the theory of an estoppel against the wife shows that the subject has been discussed under two distinct aspects.

In some of the cases, the wife's conduct has been treated as an element which raised an estoppel against denying the husband's agency in respect of making the contract and procuring its execution. To the predication of an estoppel of this description it is an tion. The same evidential element, conjoined with the fact that she and her husband had occupied a part of the building themselves, was the basis of the judgment in Tarr v. Muir (1899) 107 Ky. 286, 53 S. W. 663.

appeared from the findings of the
trial judge that the wife objected to
the erection of the building, but they
also showed that she stood by, saw the
work being done as it progressed,
knew that materials were being fur-
nished therefor, boarded the carpen-
ters, moved into the new house, was
still occupying it, and had made two
attempts to borrow money with which
to pay and discharge the liens. The
court said: "She thus accepted the
benefits accruing from the labor and
materials which went into the build-
ing, and is still enjoying such bene-
fits. It seems to us that this is a com-
plete acceptance of the building which
was the result of the labor and ma-
terials performed and furnished by
appellees, and a ratification of the
acts of her husband." One of the au-
thorities relied upon was Wilson v.
Logue (1892) 131 Ind. 191, 31 Am. St.
Rep. 426, 30 N. E. 1079, in which it
was held that where land was owned
by husband and wife as tenants by
the entireties, and the husband, with
the knowledge of his wife and with-
out objection on her part, purchased
material to replace a barn on said
premises, which had been destroyed
by fire, and the wife was present when
the material was delivered and used
in the construetion of the building,
and made no objection, the party fur-
nishing the material might acquire
and enforce a lien against the prop-
erty. The court also cited Dalton v.
Tindolp (1882) 87 Ind. 490, in which
it was held that, where a husband and
wife hold real estate in joint tenancy,
a mechanics' lien may be acquired
thereon for materials for the construc-
tion of a dwelling house, under a
written contract signed by the hus-
band, and not by the wife, where it
appears that the wife acquiesced in,
and consented to, the construction of
the building.

In McCarty v. Carter (1868) 49 Ill. 53, 95 Am. Dec. 572, where one of the defendants was the minor daughter of the other, an instruction was held erroneous by which the jury were in effect told that the mere receipt of rents and profits from the building in question by the wife and Lucy J. Davis would involve the creation of a lien, even though they had neither made the contract themselves, nor authorized it to be made for them, and had no knowledge as to the nature of the contract upon which the building was being erected. The court said: "Even admitting them to have both been competent to contract, certainly the mere fact that McCarty made a contract for them, without their authority or knowledge, would neither bind them nor compel them to submit to a lien merely as a consequence of receiving rent. If they had been competent to contract, and knew that the building was being erected under a contract made in their behalf, by a contract made in their behalf, by them, and had permitted the contractor to proceed under that belief, a very different question would be presented."

In Chicago Lumber Co. v. Mahan (1893) 53 Mo. App. 425, one of the circumstances relied upon as showing that the wife had ratified the contract was that she had collected the rents accruing from the building in ques

1 "A married woman may, by silently acquiescing in the contract of one who, to her knowledge, assumes to act as her agent, be estopped to deny the agency." Hoffman v. McFadden (1892) 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753.

In Hawkins Lumber Co. v. Brown (1893) 100 Ala. 217, 14 So. 110, it was conceded that the doctrine of estoppel might have been invoked "if the husband had contracted in the name of the wife, representing himself as her authorized agent, and, with a knowl edge of this fact, she had acquiesced or had given countenance to the exercise of such authority as her agent."

obviously essential prerequisite that she should be proved to have had knowledge of all the material circumstances incidental to the creation and performance of the contract.2

In other cases the conception relied upon was that the wife had, by failing to disclose her interest in the property

2 In Anderson v. Armstead (1873) 69 Ill. 452, where the wife was held to be estopped from denying that her husband was acting as her agent in making the contract for furnishing certain materials and painting her house, the allegation in the wife's answer, denying her knowledge of these facts, was disproved by evidence which showed that, on two different occasions, when she was at the house while the work was being done, in company with her husband, the claimant spoke to him about the work; that while the work was being done, she and her husband were boarding only about one block from the house and in plain view of it; and that the house was being fitted up for a residence for herself and husband, and was occupied as such soon after the claimant's work was completed.

In Richards v. John Spry Lumber Co. (1897) 169 Ill. 238, 48 N. E. 63, affirming (1896) 64 Ill. App. 347, the evidence showed that the wife had, by a power of attorney duly executed, authorized her husband to execute leases, collect rents, etc.; that she had entered into a contract in writing with one White to make certain repairs and furnish materials; that this contract was signed for her by her attorney in fact; that she saw and read the contract; that White sought to purchase lumber and other materials from the claimant, but that these were not furnished until the claimant's agent had had an interview with the husband; that he purchased the lumber, to be charged to his wife, and promised to pay for the same before any part of the money was paid to White; and that the wife had knowledge that the husband was assuming to act as her attorney in fact in making this contract and in being present and watching the work as it progressed. Held, that the wife was estopped from denying a liability for the husband's


In Boeckeler Lumber Co. v. Wahlbrink (1915) 191 Mo. App. 334, 177 S. W. 741, the facts which were held to

to which her husband's contract had reference, estopped herself from setting up that interest against the claimant. The general principles applicable in this point of view have been thus stated by the supreme court of Illinois: "Where the owner of property holds out another or allows him to appear show as a matter of law that the wife was estopped from denying the agency of her husband in the erection of the house in question, and that she thereby bound her property for the value of the material which went into the construction of the house, were as follows: That Mr. Eicks, the husband, had first used his own money to defray the cost of building the house, and then borrowed more on the security of a trust deed executed by himself and his wife; that she knew that this money which had been borrowed by her husband was for the purpose of completing the erection of the house on her lot, and made no objection to encumbering her property; that she was frequently on the premises while the building was being erected; that she knew it was being erected as a family residence; that the husband had no interest in the lot; that, so far as it appeared, no objection made by the wife to the location of the building was communicated to anyone except her husband; and that, according to her own testimony, she had nothing to do with any arrangement of detail in respect to the house or its building.

In McNichols v. Kettner (1887) 22 Ill. App. 493, where the defense was rested upon the ground that the written contract was signed by the husband, and did not purport to bind the wife, the evidence showed that it was the understanding of all the parties that the money to pay for the building in question was to be derived from the earnings of a son of the defendant; that the claimant supposed that the title to the land on which the building was to be erected was in the husband, and had him sign the contract for that reason; that the defendant must have known the terms of the contract, as she made all the payments that were made upon it from money given to her by her son. The court said: "The money which her son gave her to pay upon the building must, under such circumstances, be regarded as a gift to her, as the

as the owner of or as having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner, or person having the apparent power of disposition, they will be protected. Their rights, in such cases, do not depend upon the actual title or authority of the party with whom they have directly dealt, but they are derived from the act of the real owner which precludes him from disputing, as against

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them, the existence of the title or pow-
er he caused or allowed to appear to be
vested in the party upon the faith of
whose title, or power, they dealt.
It is immaterial
whether she
in fact authorized the particular con-
tract to be made or not. The question
is not what power did her husband
actually have over the property, but
what power did she, by her acts and
omissions, permit him to represent
himself to the appellant to have?"4
ders (1867) 46 Ill. 18, where the fol-
lowing language was used: "The con-
tract for the building was made with
her full knowledge, approbation, and
consent, as we are bound to infer
from the testimony, and she did not
disclose her interest. She knew very
well what was going on and she took
no steps to prevent it, and ought now
to be estopped from objecting, or of
setting up her right to defeat the

lot was, and when she paid it out up-
on the contract, she paid it, not as
her husband's money or her son's
money, but as her own money, which
she was expending to improve her own
property; under all the circumstances
we think that appellant is estopped to
deny that her husband acted as her
agent in making the contract. She
permitted him to interfere about an
improvement which the evidence
shows she wanted made upon her lot.
She negotiated with appellee [claim-
ant] about the cost, and the amount
of the instalments to be paid for the
work; she actually made all the pay-
ments that ever were made for the
work, and as far as she paid, seems
to have done so in accordance with
the contract. Her husband does not
seem to have had anything further
to do about the matter than to partic-
ipate in the preliminary negotia-
tions, and to have signed the written
contract. To permit appellant now to
defeat appellee from getting his pay
would be to allow her to profit by this
interference of her husband, which
she knew of and acquiesced in, and
thus commit a fraud upon appellee,
who, in good faith, built the cottage
upon her lot in which she and her
husband now live."

For a case in which the element of an estoppel was held to be excluded by the consideration that, under the circumstances shown, the wife might have supposed that the work in question was being done on the personal credit of her husband, see Coorsen v. Ziehl (1899) 103 Wis. 381, 79 N. W. 562, § 29, note 10 (b), infra.

3 To the end of this sentence the language of Bigelow on Estoppel, p. 468, is adopted almost verbatim by the court.

4 Anderson v. Armstead (1873) 69 Ill. 452 (wife had neglected to record her deed in a reasonable time). One of the cases cited was Schwartz v. Saun

"Where the husband contracts for the improvement of his wife's property with one who believes him to be the owner, and the wife, knowing this fact, permits the work to be done without disclosing her right, it has been held that she will be estopped to set up her title in defense of an action to enforce the contractor's lien." Hoffman v. McFadden (1892) 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753, citing Bigelow, Estoppel, 602, 603; 2 Jones, Liens, § 1264.

In Hawkins Lumber Co. v. Brown (1893) 100 Ala. 217, 14 So. 110, it was conceded that, "if the husband had represented to the materialmen that the property to be improved belonged to him, and on this false representation the goods were obtained, and the wife, with knowledge of such false representation, had permitted the improvements to be made without objection, probably the equitable rule of estoppel might be invoked."

In Bruck v. Bowermaster (1889) 36 Ill. App. 510, it was held that good grounds for an estoppel against the wife were shown by evidence that the whole work was done on her property; that she received the entire benefits of it; that, knowing her husband to be insolvent and unable to pay for the work, she did not disclose the fact that the title to the lots stood in her name; and that she stood by and saw the work and directed its operation.

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