The doctrine enunciated in the passage above quoted is subject to the qualification indicated by the following statement: "The mere fact that she stood by and permitted her husband to construct the building on her property, and to enter into contracts for the purpose in his own name without objection on her part, and without informing [the claimant] that she was the owner of the lots, would not, of itself, if she did not know that he represented himself as owner, show any fraudulent conduct on her part from which an estoppel would arise." 5 There is clearly no room for predicating an estoppel on the grounds thus explained, if it appears that the claimant had knowledge, either actual or constructive, that the wife was the owner of the land on which, or in re

5 Bastrup v. Prendergast (1899) 179 Ill. 553, 70 Am. St. Rep. 128, 53 N. E. 995, affirming (1898) 76 Ill. App. 335. See also Geary v. Hennessy (1881) 9 Ill. App. 17, where it was held that "the mere fact that the improvements were made under her daily inspection, with her knowledge and consent, will not make her land liable where the work is done under a written contract with a third person."

Hoffman v. McFadden (1892) 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753; Campbell v. Jacobson (1893) 145 III. 389, 34 N. E. 39 (evidence of title had been placed on record long before the date of the contract in question).

"See, for example, Anderson v. Armstead (1873) 69 Ill. 452.

In Barker v. Berry (1881) 8 Mo. App. 446, the court said: "Other cases cited by the plaintiff are to the effect that the legal owner should not stand by and see improvements put upon his land under the order of another, and then attempt to defeat the lien. But the case at bar presents no ground for estoppel. The wife had a right to suppose that the materialmen looked to the written contract as made, and certainly she did not in any way authorize her husband to act for her, nor did he assume to do so. She neither said nor did anything from which any inference could be drawn that she was responsible. Under these circumstances, how the necessary agency is to be established 4 A.L.R.-67.

lation to which, the work in question was done.

6

It may be remarked that, in the arguments of the courts, the distinction between these two descriptions of estoppel has not always been brought out as clearly as is desirable."

As the second species of estoppel operates irrespective of whether the husband was or was not the wife's agent, it is of considerable practical importance, as affording claimants a means of enforcing a lien where a case involving a sealed contract is presented in a jurisdiction in which the strict common-law doctrine prevails that parol evidence is not admissible for the purpose of showing that it was executed by the husband as agent for his wife.

Cases may also arise in which the in the face of the express contract, which subcontractors were bound by, it is not easy to discover." The transitions in this passage from one description of estoppel to another affords a very curious example of confused thinking.

The difference was manifestly present to the mind of the court, which observed that "here the owner made no contract, and she cannot be held liable for the contract of another not her agent, unless she had done some act by which she had estopped herself from relying upon her rights." Geary v. Hennessy (1881) (Ill.) supra.

8 In Bastrup v. Prendergast (1899) 179 III. 553, 70 Am. St. Rep. 128, 53 N. E. 995, affirming (1898) 76 Ill. App. 335, the following evidence was held to be admissible: That the wife observed the progress of the work, frequently inspecting it; that important changes were made and contracts entered into in accordance with her directions; that she fully understood and authorized all that was being done by the claimants in doing the work and furnishing the materials for which the liens are claimed; that she knew her husband was insolvent, so that the building could be paid for in no other way than by moneys secured by liens upon the property; and that the claimants did not know that she, and not her husband, was the owner of the lots. The court said: "Here it was a question of fact pertinent in

evidence, although not sufficient to war-' rant the inference of the husband's agency, may be such as to enable the claimant to enforce his lien on the ground of estoppel. But so far the courts have not devoted much attention to this important phase of the subject.9

In MILLIGAN v. ALEXANDER (reported herewith) ante, 1022, it was observed, with reference to circumstances similar to those with which the present section is concerned, that "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." The opinion was also expressed that "inasmuch as the statute gives a married woman the right to contract for the improvement of her property as freely as if she were a feme sole, we think it is more consonant with reason to hold her liable on the ground of her husband's agency." From what is stated above it is evident that the former of these remarks needs some qualification, inasmuch as there are cases in which parol evidence may not be admissible to prove the husband's agency, while it is always competent to establish an estoppel against the wife. The second remark seems to be, at the very least, wanting in precision. There is much difficulty in conceding that in cases where two legal principles are equally pertinent the case whether or not she [defendant] had knowledge that John McNally held himself out to the appellees as the owner of the property, and permitted him to contract as owner with appellees for her work and materials to be used in constructing the building on her property. Both husband and wife resided upon the premises, and we are of the opinion that the evidence is sufficient to charge her with knowledge that, in making his contracts with the builders, her husband represented himself as owner of the property, and that they relied upon that representation in doing their work and furnishing the materials."

9 In Spears v. Lawrence (1894) 10 Wash. 368, 45 Am. St. Rep. 789, 38 Pac. 1049, it appeared that during the

in respect of a certain state of facts, it is more "consonant to reason" that one of them should be invoked rather than the other. That the effect of modern legislation in enlarging the privilege of married women cannot warrantably be regarded as a decisive factor in this connection is indicated by the consideration that the domain within which the doctrine of estoppel operates is, on the whole, coextensive with that covered by contractual capacity, whether that capacity is or is not defined by statute.10 The more simple and logical position seems to be that, as in other classes of cases in which the evidential situation is such that it may be considered under more than one juridical aspect, the results of the wife's acquiescence may, at the option of the court, be defined with reference to the principles either of the law of agency or of the law of estoppel.

If it is sought to bind the wife's property by way of an estoppel, the facts relied upon as creating such an estoppel should be alleged.11

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

$ 29. Enactment relating to the effect of the owner's "consent."

In Minnesota it has been enacted, with respect to labor or materials which may be the subject of a lien, that, whenever these are furnished progress of the work, the wife was about the premises with her husband, and helped to select the colors of the paints for the building. Held, that although the authority of her husband to make the contract in question was not shown, the wife was estopped to dispute the enforceability of the lien.

10 Perhaps the only exception to this coincidence is that which is created by the doctrine of those courts which hold that the defendant in an action on the ultra vires contract of a corporation may, under certain circumstances, be estopped from pleading its invalidity.

11 Wilson v. Schuck (1879) 5 Ill. App. 572; Geary v. Hennessy (1881) 9 Ill. App. 17.

"by or with the knowledge and consent of a married woman who is the owner of the property benefited thereby, upon the order of her husband, such knowledge and consent shall be sufficient to establish that such husband acted therein as the agent of the wife.” Laws 1883, chap. 43; Laws 1885, chap. 46. It has been held that this provision is applicable as a rule of evidence, not merely for the purpose of establishing a lien, but also for the purpose of obtaining a personal judgment against the wife; and that the agency of the husband cannot be predicated from evidence which shows merely the "knowledge" of the wife.1

In Indiana it is provided that "whenever repairs or improvements are made on real property of the wife by order of the husband, with her consent thereto, in writing, delivered to the contractor or person performing the labor, or furnishing the material, she alone shall be personally liable for the labor performed or the material furnished." 3 Burns's Rev. Stat. 1914, §§ 7860 (6968). It has been held that this provision has no application to real estate

1 Smith v. Gill (1887) 37 Minn. 455, 35 N. W. 178.

In McCarthy v. Caldwell (1890) 43 Minn. 442, 45 N. W. 723, where a new trial was ordered on the ground that certain evidence tending directly to show that, while the work was in progress, the wife had knowledge of it, and made certain inquiries and remarks expressive of approval, had been struck out by the trial judge, the court was of opinion that, apart from this evidence, the conclusion that the labor and material were furnished with the authority, knowledge, and consent of the wife would have been amply justified by testimony to the effect that the wife saw some of the plumbing work in question, after it had been put in, that she assured one of the claimants that he should be paid as soon as the work was finished, and that she joined with her husband in a note and mortgage to be given to them.

la Haehnel v. Seidentopf (1916) Ind. App. —, 114 N. E. 422, following Taggart v. Kem (1899) 22 Ind. App. 271, 53 N. E. 651, which relied on Wilson v. Logue (1891) 131 Ind. 191, 31

which the wife and husband own as tenants by the entireties.la

Obviously the effect of such provisions as the above is to eliminate the possibility of any doubt concerning the probative force of the wife's consent. See § 16, supra.

A similar result has been produced in other jurisdictions by the clauses of general scope which declare that a lien may be acquired not only where the claim is founded upon a contract made with the owner of one of the specified descriptions of property, but also where work was performed or materials furnished "with or by the consent" of such owner. As the "consent" upon which the right to a lien is thus conditioned may, in one point of view, be regarded as operating so as to place the person to whose acts it is applicable in the position of an agent of the consenting party, 2 the present monograph would not be complete without some allusion to the cases in which the effect of this element has been discussed with reference to the liability of married women.3 For further information regarding the subject in its

Am. St. Rep. 426, 30 N. E. 1079, and Dalton v. Tindolph (1882) 87 Ind. 490. See § 27, note 1, supra.

2 It should be observed in this connection that the fact that the husband had not acted as the wife's agent has in some cases been specified as one of several elements which were regarded as negativing the inference of her consent. Huntley v. Holt (1890) 58 Conn. 445, 9 L.R.A. 11, 20 Atl. 469; Lippmann v. Low (1902) 69 App. Div. 24, 74 N. Y. Supp. 516; Coorsen v. Ziehl (1889) 103 Wis. 381, 79 N. W. 562.

On the other hand, in Schmalz v. Mead (1891) 125 N. Y. 188, 26 N. E. 251, the fact that the husband had acted on behalf of his wife when he signed the building contract in question was a portion of the evidence which was held to warrant the inference of her consent.

3 In Husted v. Mathes (1878) 77 N. Y. 388 (construing an act of local scope), the applicability of enactments of this tenor to the property of married women was expressly affirmed. The same doctrine is, of course, taken for granted in the cases cited in the following notes.

relation to contracts made with vendees and lessees, see notes to Belnap v. Condon, 23 L.R.A. (N.S.) 601, and Wilson v. Gevurtz, L.R.A.1917D, 577.

The phrase used in some of the enactments belonging to this category is "with or by the consent" of the owner. In an action founded upon one of these the only issue involved is whether the wife had given her consent to what was done by the husband in respect of making the contract in question and procuring its performance.4

The operative words of other enactments are "with the knowledge and consent" of the owner. With reference to one of these it has been laid down that "the only thing the lien claimant has to establish on the trial, when he claims a lien upon the real estate upon which a building is erected by some person other than the owner of the realty, is the fact that the owner knew that the building was being constructed on his or her premises, and that he or she consented to such construction." It was accordingly held in the case cited that the remedial rights of a person by whom a building had been erected on the land of a married woman, in pursuance of a contract made with her husband, could not be defeated by proof that the husband had expressly promised to defray the entire cost of the improvement. In another case a lien for materials was enforced upon the same general ground, although they had been purchased by the husband on his own credit. 6

In one case we find the following statement: "When the statute uses the words, 'by the consent of the owner of the land,' it means that the person rendering the service or furnishing the

4 See cases reviewed in note 11, infra.

5 Heath v. Solles (1889) 73 Wis. 217, 40 N. W. 804.

6 North v. La Flesh (1889) 73 Wis. 520, 41 N. W. 633.

(b) Import of the term "consent."

7 Huntley v. Holt (1890) 58 Conn. 445, 9 L.R.A. 11, 20 Atl. 469.

In Flannery v. Rohrmayer (1879) 46 Conn. 558, 33 Am. St. Rep. 36, it has been previously remarked: "If the statute is to be interpreted as in

But

materials, and the owner of the land on which the building stands, must be of one mind in respect to it. The words, 'consent of the owner,' are used in the statute as something different from an agreement with the owner; and while it may be urged that they do not require such a meeting of the minds of the parties as would be essential to the making of a contract, there must be enough of a meeting of their minds to make it fairly apparent that they intended the same thing in the same sense." unless the learned court was prepared to go to the length of predicating, with respect to cases involving a contract made with an agent of the owner, an exception to the general principle, "Qui facit per alium facit per se," it is difficult to see upon what ground the theory that the statutory "consent" imports "something different from an agreement can rest." With all deference it is submitted that the rationale of such case is simply that the "consenting" owner becomes, according to the state of facts, a party to the agent's contract either by an antecedent or by a subsequent adoption of its obligations. Indeed, it seems not improbable that the intention of the legislatures which have introduced into the Lien Laws provisions of the type now under consideration has been to repudiate the doctrine which, as is shown in § 16, supra, had not infrequently been propounded, viz., that there is a species of "consent" which amounts to nothing more than a mere permission, and consequently does not affect the owner with any contractual liability.

According to some of the cases the statutory "consent" must be established by specific testimony of an affirmative significance; "mere knowledge and sicluding the real estate of the wife in cases where she is not a party to the contract, and where it does not appear to be for her benefit or for the benefit of her estate, then it works a radical change in the laws relating to the property of married women, and subjects it to the payment of the debts of the husband, thereby and to that extent repealing prior laws on that subject. We cannot believe that such was the intention of the legislature, and must therefore hold such a construction is inadmissible."

lence" on the part of the owner not being regarded, in this point of view, as elements from which it can be predicated. There is also some authority for the opposite doctrine. For practical purposes, however, the question whether the former or the latter of

8 In Gilman v. Disbrow (1878) 45 Conn. 563, Mrs. Gilman, one of the plaintiffs in the writ of error, owned the fee of the land on which the defendants had erected two henhouses. Her husband, with whom the defendants had made the building contract, was entitled to the use and improvement of the land during his life. The grounds upon which it was held that the decree complained of was erroneous in that it ran against the wife and her estate were thus stated: "The wife's fee is not to be subjected to this statutory mortgage unless she made an agreement with or requested the defendants to furnish the materials and perform the labor. The fact that she saw them doing it, and by making no objection assented to its being done, does not impose an implied promise upon her. There is nothing in the finding tending to show either that the structures were erected for the improvement of her reversion, or that they were calculated to have that effect; indeed, their character and their purpose-that of breeding fancy poultry-alike suggest present and temporary rather than future and permanent use,suggest advantage only to the present estate in the husband. In view of this she may well have supposed, in the absence of any express promise or request from herself, that the defendants had made such arrangements with him as to payment, as to induce them to forego any lien upon her fee, and rely solely upon her personal credit, or upon his security of his life estate. And, as we may assume that these structures would add to the profit of the life use, it is to be presumed that the husband was acting solely for himself and for the benefit of his particular estate, until it is made to appear that he was acting in fact as the agent of the wife."

In Healey Ice Mach. Co. v. Green (1910) 181 Fed. 890, the court, commenting upon the South Carolina enactment (Revisal 1905, § 2015), which renders the property of a married

these theories should be accepted is seldom material in view of the fact that, in the great majority of the cases with which the courts are called upon to deal, testimony of a definite probative value is presented. The effect of some decisions concerning testiwoman liable when the improvements on her land are made with her "consent or procurement," observed: "This language indicates something more than mere knowledge that her husband is making the improvement; otherwise the title to her separate real estate, supposed to be protected by carefully devised constitutional and legislative safeguards, would be, as to liens of this character, easily burdened. To consent to or procure improvements on one's real estate requires some act or words much more unequivocal than mere silence with knowledge of the fact."

Compare also Smith v. Gill (1887) 37 Minn. 455, 35 N. W. 178, note 1, supra.

9 In Foskett & B. Co. v. Swayne (1897) 70 Conn. 74, 38 Atl. 893, the plaintiff was held to have been erroneously nonsuited, where his evidence showed that the wife knew that the improvements in question were being made upon the property by the plaintiff, and these improvements would largely increase its value. The opinion was expressed that this fact alone might possibly authorize a jury to find that she had given her consent. The court added: "Especially might her consent be inferred when it appeared, as it did, that she had taken part in selecting the materials; that she had given directions concerning the work; that she had in some instances countermanded the orders given by her husband, as though she had the superior authority; that she decided whether certain parts of the work should be done or not done by reason of the cost; and that at times she evinced an expectation to pay for the work and the materials." So far as regards the definite ruling of the court with respect to the effect of the wife's knowledge alone, it seems to be scarcely sustained by Gannon v. Shepard (1892) 156 Mass. 355, 31 N. E. 296, the precedent cited, which (see infra) involved other elements besides knowledge. It is, moreover, not easily reconciled with the express statement of the court in Flannery