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Depreciation of property by the erection of a hospital by a municipality as a "taking" or "damaging" within the constitutional provision.

A general discussion of a pesthouse or contagious-disease hospital as a nuisance appears in the note to Birchard v. Board of Health, ante, 995. The present note is confined to the distinctive question indicated in the title hereto.

There is a difference of opinion as to whether the general depreciation of property in the neighborhood of a hospital is an injury for which a municipality establishing the hospital is liable, under a constitutional prohibition against taking or damaging property without compensation. It is the view of the Illinois court in Frazer v. Chicago (1900) 186 Ill. 480, 51 L.R.A. 306, 78 Am. St. Rep. 296, 57 N. E. 1055, that the depreciation of the value of real property, caused by the establishment of a smallpox hospital in the neighborhood under statutory authority, does not constitute a taking or damaging of private property for pub

lic use without just compensation, within the meaning of this constitutional provision. The theory of the court is well summed up in a quotation from Rigney v. Chicago (1881) 102 Ill. 64, to the effect that "there are certain injuries which are necessarily incident to the ownership of property in towns or cities, which directly impair the value of private property, for which the law does not and never has afforded any relief. For instance, the building of a jail, police station, or the like will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria." And in conclusion it is stated: "We can see no difference, in principle, between the right of a city to establish and maintain a smallpox hospital, and to erect and use jails, fireengine houses, calabooses, and the like. Greater care might be required in the

maintenance of one than the other, and different considerations would undoubtedly enter into the selection of a site of a pesthouse than of a fire-engine house or jail; but the city would be liable only for an abuse of authority, or an unwarranted exercise of discretion in locating or maintaining the same, having reference to the present necessities, the crowded condition of the locality in which they are placed or maintained, and other pertinent facts and circumstances."

On the contrary, the courts of Kentucky and Oklahoma hold that compensation must be made for such depreciation under such a constitutional provision.

In Paducah v. Allen (1901) 111 Ky. 361, 98 Am. St. Rep. 422, 63 S. W. 981, the city established a contagious-disease hospital principally for the treatment of smallpox patients, about 3 miles from its corporate limits. In holding the city liable for the depreciation in the value of surrounding property, the court states: "We, therefore, conclude that, where a city or other municipality erects and maintains a public institution which, by reason of its nature, endangers the lives or health of the occupants of adjacent

premises, as by subjecting them to contagious or other infectious diseases, it is not only a nuisance, but it is such an invasion of the property rights of such adjacent holder as amounts both to an injuring and a taking of property, under the section, supra, of our state Constitution. For this the city must make compensation." The wording of the constitutional provision differs slightly from that of Illinois, but in substance is the same. The Kentucky Constitution provides that "municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them."

See the reported case (OKLAHOMA CITY V. VETTER, ante, 1009).

And see Anable v. Montgomery County (1904) 34 Ind. App. 72, 107 Am. St. Rep. 173, 71 N. E. 272.

As indicated in the title, this note has been confined to cases in which liability is sought to be imposed upon the municipality by virtue of the constitutional prohibition against taking or damaging property without compensation; it does not discuss the liability based upon other grounds. W. A. E.

MRS. MILDRED BANKS, Individually and as Guardian, Doing Business as Banks & Company, Appt.,


G. H. PULLEN and Wife.

Mississippi Supreme Court (Division B)

- March 19, 1917.

(113 Miss. 632, 74 So. 424.)

Husband and wife husband as wife's agent charge on building.

Where a man undertakes to construct a building on his wife's land with money furnished by her, he is using means furnished by her to carry on business in his own name, within the meaning of a statute making him her agent, under such circumstances, as to all persons dealing with him without notice, and the wife is, therefore, liable for materials furnished him for the building, although she has paid him therefor, and her property may be sold to satisfy the claim.

[See note on this question beginning on page 1025.]

APPEAL by plaintiff from a judgment of the Circuit Court for De Soto County (Dinkins, J.) in favor of the defendant wife in a suit to enforce a materialman's lien on certain property, the legal title to which was in said defendant. Reversed.

The facts are stated in the opinion of the court. Messrs. Holmes & Logan, for appellant:

The alleged contract between defendants Pullen was and is fraudulent, because, by entering into it under the terms mentioned therein, which was a secret contract, it would be impossible for any laborer or materialman to avail himself of the "lien of mechanics and materialmen," under the laws of the state of Mississippi.

Bates Mach. Co. v. Trenton & N. B. R. Co. 70 N. J. L. 684, 103 Am. St. Rep. 811, 58 Atl. 935; 27 Cyc. 299, 301; Picard v. Shantz, 70 Miss. 381, 12 So. 544.

The alleged contract between defendant and his wife is void under § 2521, Code of 1906, because it is a contract for "work and labor" to do a specific thing for a specific sum of money, and said money is to be paid in advance.

4 Elliott, Contr. § 3667; Wooten v. Read, 2 Smedes & M. 585; Flynn v. Dougherty, 91 Cal. 669, 14 L.R.A. 230, 27 Pac. 1080; Phipps v. McFarlane, 3 Minn. 109, Gil. 61, 74 Am. Dec. 743; Courtright v. Stewart, 19 Barb. 455; Re Gies, 160 Mich. 502, 30 L.R.A. (N.S.) 318, 125 N. W. 420, 19 Ann. Cas. 1288; Bond v. Bourk, 54 Colo. 51, 43 L.R.A. (N.S.) 97, 129 Pac. 223, Ann. Cas. 1914C, 581; Davis v. Blanchard, 138 N. Y. Supp. 202.

Messrs. Mayes, Wells, May, & Sanders, also for appellant:

The contract between defendants was void.

Planters' Lumber Co. v. Tompkins, 111 Miss. 307, 71 So. 565; 9 Cyc. 475; Bowdre v. Carter, 64 Miss. 221, 1 So. 162; Arnold v. Elkins, 67 Miss. 675, 7 So. 251; Black v. Robinson, 62 Miss. 68; Watkins v. Duvall, 69 Miss. 364, 13 So. 727; Montgomery v. Scott, 61 Miss. 409; Cotten v. McKenzie, 57 Miss. 419.

The house was subject to the lien of the materialman.

Planters' Lumber Co. v. Tompkins, supra; Fairbanks Co. v. Briley,


25 So. 354; Flake v. Central Hardware Co. 96 Miss. 838, 51 So. 461; Schiaffino v. Christ, 96 Miss. 801, 51 So. 546; Flake v. Central Hardware Co. 96 Miss. 838, 51 So. 461.

Messrs. Mayes & Mayes, for appellees:

Plaintiff has not shown itself entitled to this lien, because it has not shown that the house was erected at the instance of Mr. Pullen.

Smith v. Frank Gardner Hardware Co. 83 Miss. 654, 36 So. 9; Herrin v. Warren, 61 Miss. 509.

The right given the legislature to regulate contracts between husband and wife does not empower the legislature to absolutely prohibit the wife from making any particular kind of contract with her husband, if, under our law, any man could have made that same kind of contract.

Andrews v. State, 3 Heisk. 165, 8 Am. Rep. 8; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Ex parte Patterson, 42 Tex. Crim. Rep. 256, 51 L.R.A. 654, 58 S. W. 1011.

Section 2522 does not have the effect of avoiding the contract between defendants Pullen.

Kennington v. Hemingway, 101 Miss. 259, 39 L.R.A. (N.S.) 541, 57 So. 809, Ann. Cas. 1914B, 392.

Cook, P. J., delivered the opinion of the court:

Upon motion of appellees, the stenographer's notes of the evidence taken at the trial of this suit were, by order of this court, stricken from the record. Afterwards appellees filed a motion asking an affirmance of the judgment of the trial court, which motion was overruled. case is, therefore, presented to this court upon the pleadings alone.


The appellant furnished G. H. Pullen, the husband of Mrs. F. M. Pullen, certain building material for the purpose of building a dwelling house upon land belonging to Mrs. Pullen; the house was built by Mr. Pullen, and the material furnished by appellant was used in the construction of the house. The house was the dwelling house of Mrs. Pullen and her husband, and was used as such. Mrs. Pullen, the owner of

(113 Miss. 632, 74 8o. 424.)

the land, together with her husband, was made a party to this suit, and the petition asked that a judgment be rendered against G. H. Pullen for material furnished and used in said building, and that said judgment be declared a lien on the house, and that the house be sold to satisfy the judgment.

Mrs. Pullen, the owner of the premises, defended upon the theory that she did not make the contract for the material; that she made a contract with her husband to furnish the material and build the house at a stipulated price, which was paid in advance. In other words, Mrs. Pullen, by her answer to the petition, denied liability, because she did not have any contract with appellant; knew nothing about the dealings between her husband and appellant; that she made a contract with her husband that he furnish the material and build her a house; and that she had paid her husband for the work and material.

We think a correct solution of this problem presented by this record may be reached by the application of our statutes relating to the business relation of the husband to the wife, to the facts of the case.

In the first place, § 2521, Code 1906, makes the contract between Mrs. Pullen and her husband for compensation for work and labor a nullity. It seems that Mr. Pullen is a mechanic, and the contract contemplated that he would perform the labor necessary to the construction of the building, and, according to the pleadings, he did do the work.

Going a step further, it appears that Mr. Pullen was carrying on the business of a contractor, and, as such, made a contract with his wife to do the work and to furnish the material necessary to the completion of the job. Was he using the "means" of his wife "to operate and carry on business in his own name?" The wife furnished the money to enable him to perform the contract, so she avers. It was her money, and may we not say with

equal certainty that money and means are one and the same thing in the statutory sense? Besides, he had charge of her land and erected the house thereon, ostensibly acting for her in the transaction of her business. The statute was designed to protect the public. Secret contracts between husband and wife are condemned for obvious reasons. We see in this case a husband building a house on the land of his wife, and entering into a contract whereby he was to receive the means of the wife for the purpose of securing the material with which to erect the house. The husband did not use the means to buy the material; he bought it from appellant on credit. Who must suffer? The husband is made the statutory agent of his wife whenever he uses any of her means to carry on a business in his own name, "as to all persons dealing with him without notice, unless the contract between husband and wife, which changes this relation, be evidenced by writing, subscribed by them, duly acknowledged," etc.

So we think when Mr. Pullen went into the business of contracting, financed by his wife, he was her agent, there being no pretense that the contract between him and his wife, changing this relation, was ever made in accordance with the statute, or that appellant had any notice of the contract. He was not only her agent, but his contracts made in furtherance of his contract were, in law, the contracts of his wife, and the pay


charge on

ment of the contract Husband and price to him does as wife's agentnot, in any way, ex- building. tinguish the obligations of his wife to pay the account made by him for materials.

This being our view of the law of this case, we will not discuss the very interesting brief of counsel for appellee referring to the lien of the materialman. Mr. Pullen was the agent of the owner, authorized to buy the material, and Mrs Pullen is

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Mechanics' lien

(195 Ala. 477, 70 So. 140.)

contract by husband

liability of wife's property. 1. To charge a wife's property with a mechanics' lien for materials purchased by her husband, he must assume to contract for her, and the contract be subsequently ratified by her with full notice or knowledge of its nature.

[See note on this question beginning on page 1025.]

- ratification of purchase.

2. Ratification by a woman of her husband's contract for materials for her building, so as to charge it with a mechanics' lien, is not shown by her

causing changes of plans for the repairs and being constantly present at the building during the progress of the work.

[See 18 R. C. L. 902.]

APPEAL by defendant from a decree of the Chancery Court for Covington County (Chapman, Ch.), in favor of plaintiff in a suit for the establishment and enforcement of a materialman's lien on certain property. Reversed.

The bill alleged the furnishing of the materials for a certain building under contract with defendant or her agent, setting out the balance due, and describing the land sought to be subjected. Afterwards the bill was amended to show that the contract was made with the authorized agent of defendant.

Further facts appear in the opinion of the court.
Mr. W. L. Parks for appellant.
Messrs. Jones & Powell for appellee.
McClellan, J., delivered the opin-
ion of the court:

This bill was filed by the appellee against the appellant to have established and enforced a materialman's lien on property improved with the material furnished. Code, § 4754. The decree awarded the relief sought.

According to the evidence the materials were furnished to, and solely on the credit of, the husband of the appellant, who owned the lot therewith improved. with improved. The contract for the materials was made with the husband alone. The law governing the rights of the parties concerned is thus well stated in Wadsworth v. Hodge, 88 Ala. 500, 506, 7 So. 196: "The contract must be either orig

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