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mony of that description is stated in
$ 30. Other enactments. the footnote. 10
In Kansas it has been enacted that a The effect of the enactments which lien may be enforced for work perrequire that the consent of the wife formed or materials furnished, “unshall be expressed in writing is stated der contract with the husband or wife in § 2, supra.
of the owner.” The effect of this prov. Rohrmayer (1879) 46 Conn. 558, it or upon the credit of her inter33 Am. Rep. 36, supra, that “mere est in the land; and she gave no knowledge and silence do not consti- notice to the plaintiff of her disaptute 'consent.'
proval of the work, or of the fact that In McDougall v. Nast (1866; Sup. she owned the land, or that her husGen. T.) 5 N. Y. S. R. 144, a finding band had no authority to act for her. that, during the progress of the work, This case was followed in Lyon v. the defendant knew that the build- Champion (1892) 62 Conn. 75, 25 Atl. ing in question was being erected, and 392, where the plaintiff sought to endid not make any objections, was con- force a lien against the interest of sidered to be in effect a finding that Mrs. Champion in premises which bethe store was erected with her con- longed to her, subject to her hussent.
band's life estate. It appeared that (a) Decisions rendered with reference
Mrs. Champion, with some reluctance, to statutes containing only the word
consented to the making of certain
improvements to the family dwelling. "consent." 10 In Huntley v. Holt (1890) 58
This consent was given to her hus
band and to her son's wife, Mary, unConn. 445, 9 L.R.A. 111, 20 Atl. 469,
der an a judgment in favor of the wife was
express arrangement and
agreement that the latter, who had affirmed upon evidence of the follow
available funds, should furnish the ing purport: At some time prior to the date when the contract in ques
money required, and, after the imtion was made, the defendant's hus
provements were completed, receive a
deed of the premises, giving back a band proposed to build houses on two
life lease of one tenement, Thereof her lots. She objected to his doing so, but he urged that the houses should
upon the plaintiff was invited by Mr. be built, and informed her that he him- Champion to visit the premises, to see
what was necessary to be done, and self was to pay for them. She then
did so, the defendant being present. made no further opposition, though
The plaintiff afterwards made a plan she still did not wish the houses to
and gave it to Mr. Champion, who be built. The plaintiff, in making the
said it was satisfactory, and arranged contract, and in performing the serv
for the materials, and for the work ices and in furnishing the materials,
to be done by the day. The plaintiff gave the sole personal credit to the
at this time was informed that Mary husband, who did not represent that
was to furnish the money to pay for he was the owner of the land on which
the improvements. During the progthe houses were to be placed. In mak
ress of the work Mr. Champion gening the contracts he acted in his in
erally gave necessary directions as to dividual capacity, and did not act as the agent of Mrs. Holt, nor had he,
details, but Mary and the defendant
occasionally gave such directions, in making same, any authority from
each as to the tenement which they or right or authority to act or con
were to occupy respectively. A judgtract for her. The plaintiff relied as
ment in favor of the plaintiff was security for the payment for his work
reversed, on the ground that the trial and materials upon such lien on the land as by law he might have. Prior
judge had proceeded upon an incorto the time he had completed the
rect theory of what constituted "conhouses he supposed that Mr. Holt was
sent of the owner," within the true the owner of the land. Mrs. Holt.
meaning of the statute. The court learned soon after the work was com
said: "That Mrs. Champion consented menced that the houses were being
that the work should be done fully. built and that the plaintiff was build- appears. That she knew the plaintiff ing them. She then, and at all times, proposed to do the work, and aftersupposed that the work was being wards that it was in fact being done done upon the personal credit of by him, and that she, as well as Mary, her husband, and not upon her cred- gave some minor directions, also ap
vision has been thus explained: “The or furnishing such iniprovements is language used in the statute is broad entitled to a direct lien against the enough to include all contracts made
Where the husband by the husband or wife of the owner
of the owner of the property purchases of the property for the purchase of material or the erection of improve
material, which the statute provides he ments thereon, and when a contract is
may do, the person furnishing the mamade and the materials furnished or
terials under such a contract may preimprovements made, the party making sume, and he has the right to do so, pears. And this is all.
Mrs. 15 Daly, 223, 4 N. Y. Supp. 614, a findChampion supposed that the work ing that the labor was performed and was being done at the expense of the materials furnished in the erecMary, to be repaid to Mary in the tion of the buildings in question "with special way named, which would leave the consent” of the wife was held to her a life lease of the tenement she be warranted by evidence of the foldesired to occupy. The plaintiff was lowing purport: The building conhimself informed that Mary was to tract, though made by the husband in furnish the money to pay for the im- his name, was really made by him in provements. If he, nevertheless, ex- his wife's name. She took an assignpected the defendant to be responsible ment of it within a short time after to him, there was clearly no meeting its execution. She herself advanced of minds between them so as 'to make all the money on it, and stipulated for it fairly appear that they intended the the execution of certain mortgages to same thing in the same sense. For her upon the property when the buildthe most that can be said is, that the ings were completed, to secure the defendant consented that the plain- moneys advanced, besides a considtiff should do the work, but not that erable sum in addition. She knew that he should do it for her or at her the buildings were being erected, and charge. It was the plaintiff's own that labor was employed and manegligence if he was misled by this, terials furnished for that purpose. since he never spoke to the defend- The court said: “The contract itself ant upon the subject, and never gave contemplated and provided for all her any notice that he expected to this, and the uncompleted buildings charge her.”
became a part of the realty. She made In Gannon v. Shepard (1892) 156 a contract which required the erecMass. 355, 31 N. E. 296, it was held tion of buildings on her land. She that the wife's “consent" might war- was to furnish the money for that rantably be inferred, where it ap- purpose. The performance of the conpeared that the house in question was tract involved the employment of labor built for the wife; that she could and and the purchase of materials." did see the workmen of the petitioners In Lippmann v. Low (1902) 69 App. at work upon it from time to time; Div. 24, 74 N. Y. Supp. 516, the comthat on one occasion she was in it plaint was held to have been propwith her husband, and saw the peti- : erly dismissed, on the ground that the tioners at work there; that she did plaintiff had never even seen the denot give any directions to them while fendant, nor had any communication they were at work; that she did not with her upon the subject of work to object to their furnishing labor or ma- be done upon her house, and that he terials; and that she did not give them relied upon the statement of the husthe written notice, disclaiming re- band as to the ownership of the propsponsibility, which is provided for by erty, and that his contract was made Mass. Pub. Stat. chap. 191, 4. with the husband.
In Husted v. Mathes (1879) 77 N. In Schummer v. Clark (1905) 107 Y. 388, a finding in favor of the plain- App. Div. 207, 95 N. Y. Supp. 836, it tiff was held to be warranted by evi- was held that evidence of the followdence that the wife was informed of ing purport should have been subthe intended improvement, that she mitted to the jury in a case where a knew of the work while it was in lien was claimed for plumbing work: progress, and that she received the The defendants, at the time plaintiff benefit willingly.
was performing the work and furIn Schmalz v. Mead (1891) 125 N. nishing the materials, resided close Y. 188, 26 N. E. 251, affirming (1889) by the dwelling. The wife was fre
that it is furnished to the husband of on her property, and has a right to file the wife, to be charged to her, and up- a lien to secure its payment." ! quently at the house when the work consent of the wife to the erection of was in progress, and actually lived in the building upon which the lien was it when the furnace was placed. The claimed could not be inferred, where premises belonged to her. The hus- the husband had testified that the band was a carpenter and builder, and wife did not know of the work until purchased the furnace and hardware, it was started; that she would not dare and they were charged to him. They to teil him to stop anything when he were obtained, however, for the bene- had started; that he had no authority fit of his wife, and were necessary to from her to do the work, but had it the completion of her house, and pre- done on his own responsibility, and sumably enhanced its value, and she did not act or assume to act as her personally paid $20 on the account. agent. The court said: "Consent canThe court said: “It is not a control- not be inferred from mere silence unling circumstance that the goods were der these circumstances. So far as charged to the husband, when it does we are advised, she may have supnot appear that he was acting inde- posed that the work was being done pendently of his wife, or by virtue of upon the personal credit of her husany agreement with her whereby he band. For that reason no element of was to pay for the improvement and estoppel can intervene. Not having no liability was to attach to her. been consulted as to the improvements, When it is disclosed that she, and not and being under such
under such arbitrary the husband, owned the property, she dominion as the evidence shows, she ought to be charged with its improve- was not bound to have a row with her ment under the circumstances of this husband, and order the workmen case, In the present case the only from the premises, at the risk of havauthority which the husband had was ing her property encumbered by a derived from the wife, and she had lien. Being a married woman, she acquiesced in the improvements upon was not free to act entirely as she her property, and they inured to her pleased. Notwithstanding the liberalbenefit, and she is the only paymas- ity of modern legislation, married ter."
women are somewhat under the In Dennis v. Walsh (1891; Brooklyn dominion and control of their husCity Ct.) 41 N. Y. S. R. 103, 16 N. Y. bands, and such relation must be conSupp. 257, the consent of the wife sidered when it is sought to bind the was held to be inferable from evi. wife's property on the ground of ratidence which showed that she lived fication by silence." close to the premises in question, and In Lentz v. Eimermann (1903) 119 saw the building in course of erec- Wis. 492, 97 N. W. 181, the claimant tion; that she was present when her was held to be entitled to a lien, husband had a conversation with the where it appeared that, soon after the plaintiff's son about the work; and excavation for the house in question that she drew her own check to make was commenced, defendant knew it a payment on account.
was being erected, and that subseIn Brunold v. Glasser (1898; County quently she executed a mortgage on Ct.) 25 Misc. 285, 53 N. Y. Supp. 1021,
her land, and turned the money over the wife's consent was held by one of to her husband, to be used in the the county courts of New York to be building of the house. predicable from evidence which See also McGeever v. Harris (1906) showed that she was not only present 148 Ala. 503, 41 So. 930, where the at the making of the contract, but findings of the trial judge upon conconstantly visited the house in ques- flicting evidence (not stated) were tion while the work of erection was in upheld. progress, and that she mortgaged her 1 Bethell v. Chicago Lumber Co. property to defray the cost of build- (1888) 39 Kan. 233, 17 Pac. 813. The ing it.
contention of the defendant that, as
the findings showed that the husband (b) Decisions rendered with reference
was a contractor, and had written a to statutes containing the words contract with his wife to erect the "knowledge and consent."
improvements and furnish the In Coorsen v. Ziehl (1899) 103 Wis. terial, and to receive certain com381, 79 N. W. 562, it was held that the pensation therefor, the plaintiff, if he
There is a similar clause in the Okla- held that a husband who had, as conhoma statute.
tractor with his wife for the erection By § 7024 of Minn. Gen. Stat. 1913, of a house, purchased materials for it, it is provided that improvements up- was to be regarded as having made the on real estate are presumed to have purchase as her agent, and consequentbeen made upon the authority of the ly that a lien might be enforced against owners. As applied to cases in which her property for the amount due to the a lien is claimed on the land of a mar- vendor.8 ried woman, this enactment apparent- By 8 4 of the Pennsylvania Act of ly produces the same effect as the On- June 4, 1901, P. L. 431, it is provided tario one which is referred to infra. that if an owner knowingly permits But its operation in this point of view any person acting as if he were the has not so far as the writer knows, owner to make a contract for which a been discussed.
claim could be filed, without objecting By § 2521 of the Mississippi Code thereto, he shall be treated as ratify1906, it is enacted that “all business ing the act of such person; in which done with the means of the wife by the case the claim may be filed against the husband shall be deemed to be on her real owner with the same effect as if account, and for her use." With ref- he had made the contract.4 erence to this provision, it has been By § 5 of the Ontario Mechanics' was entitled to enforce any lien of the material furnished and used in against said property, could do so on- such building.” ly on the ground that he was a mere See also Block v. Pearson (1907) subcontractor, was thus disposed of: 19 Okla. 422, 91 Pac. 714. "It is true that a person dealing with 3 BANKS v. PULLEN, ante, 1013. The an agent must, at his peril, know the court said: “We see in this case a rights of the agent in the premises, husband building a house on the land and if this contract had been made of his wife, and entering into a conwith any person other than the hus- tract whereby he was to receive the band, this lien could not be upheld; means of the wife for the purpose of but as the husband under the law has securing the material with which to the right to contract, this rule can- erect the house." not be applied in this case. The par- 4 In National Supply & Constr. Co. ties can rely upon the presumption v. Fitch (1913) 55 Pa. Super. Ct. 212, that they were not dealing with the a case within the purview of the stathusband as agent, but as owner un- ute was held to be shown by evidence. der the statute. If the claim of the to the effect that the contract in quesdefendants can be upheld, then the tion was in the name of the husband; way is left open for great wrongs and that the plans and specifications exfrauds to be perpetrated. A contract hibited to the plaintiff as a basis for is entered into between husband and its bid on the material desired were wife; no disclosure is made of the ex- also in the name of the husband; that tent of that contract; material is fur- the husband had charge of the businished; afterward, when the time for ness for his wife, and acted for her filing a subcontractor's lien has ex- in procuring the contracts and lookpired, a contract is produced under ing after the completion of the buildwhich the building was erected, the ing in question; and that, apart from wife receiving the benefit of the trans- the constructive notice arising out of action, and the husband and wife her recorded deed, the plaintiff had thereby defeating the Lien Law. no knowledge that the wife owned the
2 In Limerick v. Ketcham (1906) 17 property. The court was also of opinOkla. 532, 87 Pac. 605, the court, re- ion that there was some evidence of lying on the Bethell Case (Kan.) su- the ratification defined in the same pra, laid down in the syllabus pre- section, as the wife "was about the pared by it the following doctrine: premises from time to time, and had "Where the wife is the exclusive own- notice that the plaintiff was furnisher of real estate, and the husband en- ing material for the construction of ters into an oral contract with a ma- the house," and "no notice of repudiaterialman to furnish material for the tion was given to the plaintiff, nor erection of a building on such real es- was any such notice posted on the tate, the materialman is entitled to a premises." lien on the property for the amount
Lien Act (59 Vict. chap. 35) it is provided that, where work or service is done or materials are furnished upon or in respect of the lands of any married woman with the privity or consent of her husband, he shall be conclusively presumed to be acting as well for himself, and so as to bind his own interest, and also as the agent of such married woman for the purposes of the act, unless the person doing such work or service or furnishing such materials shall have had actual notice to the contrary before doing such work or furnishing such materials. So far as the present writer has been able to as
5 In Gillies v. Gibson (1908) 17 Manitoba L. R. 479, Mathers, J., mentioned that he had unsuccessfully urged the insertion of a similar provision in the Manitoba Lien Act, and that his suggestion was declined by the attorney general of that province on the ground that, under the circumstances specified in the Ontario statute, a presumption arose that the husband was acting as the wife's agent. The learned judge did not specify the decisions upon which his own opinion was based.
6 Hoffman v. McFadden (1892) 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753. The court, after having pointed out that, in the earlier case of Rudd v. Peters (1883) 41 Ark. 184, this section had been construed to
certain, no similar provision has been enacted in any of the American states.
The contention that the following provision in § 4637 of the Arkansas Digest should be construed in such a sense as would render it applicable to cases involving claims for liens has been rejected: “The fact that a married woman permits her husband to have the custody, control, and management of her separate property shall not of itself be sufficient evidence that she has relinquished her title to said property, but in such case the presumption shall be that the husband is acting as the agent or trustee of his wife." & mean that the husband shall not acquire title by the wife's permission to use, control, or manage her property, continued thus: sumption it raises is for the protection of the wife's property against the seizure for the husband's debts. It makes the latter's control or management of the property evidence only of an agency for that purpose, and not of any power to bind the property by the contract. If the presumption of the statute could be resorted to for the purpose of showing the authority to make a contract by virtue of which the wife's property may be subjected to a lien, it might become an instrument for depriving her of the rights it was designed to protect.” C. B. L.
STATE OF IOWA
Iowa Supreme Court - December 14, 1918.
(- Iowa, -, 169 N. W. 646.)
Witness — wife against husband -- assault to rape.
1. A woman is not a competent witness against her husband in a prosecution against him for assault with intent to commit rape on another woman, under a statute permitting her to testify in a prosecution for crime committed by him against her.
[See note on this question beginning on page 1069.] Criminal law instruction
suffi- for assault with intent to rape that it ciency.
is no defense that accused expected to 2. An instruction in a prosecution accomplish his purpose without oppo