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mony of that description is stated in the footnote.10

The effect of the enactments which require that the consent of the wife shall be expressed in writing is stated in § 2, supra.

v. Rohrmayer (1879) 46 Conn. 558, 33 Am. Rep. 36, supra, that "mere knowledge and silence do not constitute 'consent.'

In McDougall v. Nast (1866; Sup. Gen. T.) 5 N. Y. S. R. 144, a finding that, during the progress of the work, the defendant knew that the building in question was being erected, and did not make any objections, was considered to be in effect a finding that the store was erected with her consent.

(a) Decisions rendered with reference to statutes containing only the word "consent."

$30. Other enactments.

In Kansas it has been enacted that a lien may be enforced for work performed or materials furnished, “under contract with the husband or wife of the owner." The effect of this pro

it or upon the credit of her interest in the land; and she gave no notice to the plaintiff of her disapproval of the work, or of the fact that she owned the land, or that her husband had no authority to act for her.

10 In Huntley v. Holt (1890) 58 Conn. 445, 9 L.R.A. 111, 20 Atl. 469, a judgment in favor of the wife was affirmed upon evidence of the following purport: At some time prior to the date when the contract in question was made, the defendant's husband proposed to build houses on two of her lots. She objected to his doing so, but he urged that the houses should be built, and informed her that he himself was to pay for them. She then made no further opposition, though she still did not wish the houses to be built. The plaintiff, in making the contract, and in performing the services and in furnishing the materials, gave the sole personal credit to the husband, who did not represent that he was the owner of the land on which the houses were to be placed. In making the contracts he acted in his individual capacity, and did not act as the agent of Mrs. Holt, nor had he, in making same, any authority from or right or authority to act or contract for her. The plaintiff relied as security for the payment for his work and materials upon such lien on the land as by law he might have. Prior to the time he had completed the houses he supposed that Mr. Holt was the owner of the land. Mrs. Holt. learned soon after the work was commenced that the houses were being built and that the plaintiff was building them. She then, and at all times, supposed that the work was being done upon the personal credit of her husband, and not upon her cred

This case was followed in Lyon v. Champion (1892) 62 Conn. 75, 25 Atl. 392, where the plaintiff sought to enforce a lien against the interest of Mrs. Champion in premises which belonged to her, subject to her husband's life estate. It appeared that Mrs. Champion, with some reluctance, consented to the making of certain improvements to the family dwelling. This consent was given to her husband and to her son's wife, Mary, under an express arrangement and agreement that the latter, who had available funds, should furnish the money required, and, after the improvements were completed, receive a deed of the premises, giving back a life lease of one tenement. Thereupon the plaintiff was invited by Mr. Champion to visit the premises, to see what was necessary to be done, and did so, the defendant being present. The plaintiff afterwards made a plan and gave it to Mr. Champion, who said it was satisfactory, and arranged for the materials, and for the work to be done by the day. The plaintiff at this time was informed that Mary was to furnish the money to pay for the improvements. During the progress of the work Mr. Champion generally gave necessary directions as to details, but Mary and the defendant occasionally gave such directions, each as to the tenement which they were to occupy respectively. A judgment in favor of the plaintiff was reversed, on the ground that the trial. judge had proceeded upon an incorrect theory of what constituted "consent of the owner," within the true meaning of the statute. The court said: "That Mrs. Champion consented that the work should be done fully. appears. That she knew the plaintiff proposed to do the work, and afterwards that it was in fact being done by him, and that she, as well as Mary, gave some minor directions, also ap

vision has been thus explained: "The language used in the statute is broad enough to include all contracts made by the husband or wife of the owner of the property for the purchase of material or the erection of improvements thereon, and when a contract is made and the materials furnished or improvements made, the party making pears. And this is all.

Mrs. Champion supposed that the work was being done at the expense of Mary, to be repaid to Mary in the special way named, which would leave her a life lease of the tenement she desired to occupy. The plaintiff was himself informed that Mary was to furnish the money to pay for the improvements. If he, nevertheless, expected the defendant to be responsible to him, there was clearly no meeting of minds between them so as 'to make it fairly appear that they intended the same thing in the same sense.' For the most that can be said is, that the defendant consented that the plaintiff should do the work, but not that he should do it for her or at her charge. It was the plaintiff's own negligence if he was misled by this, since he never spoke to the defendant upon the subject, and never gave her any notice that he expected to charge her."

or furnishing such iniprovements is entitled to a direct lien against the property. . . . Where the husband of the owner of the property purchases material, which the statute provides he may do, the person furnishing the materials under such a contract may presume, and he has the right to do so, 15 Daly, 223, 4 N. Y. Supp. 614, a finding that the labor was performed and the materials furnished in the erection of the buildings in question "with the consent" of the wife was held to be warranted by evidence of the following purport: The building contract, though made by the husband in his name, was really made by him in his wife's name. She took an assignment of it within a short time after its execution. She herself advanced all the money on it, and stipulated for the execution of certain mortgages to her upon the property when the buildings were completed, to secure the moneys advanced, besides a considerable sum in addition. She knew that the buildings were being erected, and that labor was employed and materials furnished for that purpose. The court said: "The contract itself contemplated and provided for all this, and the uncompleted buildings became a part of the realty. She made a contract which required the erection of buildings on her land. She was to furnish the money for that purpose. The performance of the contract involved the employment of labor and the purchase of materials."

In Lippmann v. Low (1902) 69 App. Div. 24, 74 N. Y. Supp. 516, the complaint was held to have been prop

In Gannon v. Shepard (1892) 156 Mass. 355, 31 N. E. 296, it was held that the wife's "consent" might warrantably be inferred, where it appeared that the house in question was built for the wife; that she could and did see the workmen of the petitioners, at work upon it from time to time; that on one occasion she was in it with her husband, and saw the peti-erly dismissed, on the ground that the tioners at work there; that she did not give any directions to them while they were at work; that she did not object to their furnishing labor or materials; and that she did not give them the written notice, disclaiming responsibility, which is provided for by Mass. Pub. Stat. chap. 191, § 4.

In Husted v. Mathes (1879) 77 N. Y. 388, a finding in favor of the plaintiff was held to be warranted by evidence that the wife was informed of the intended improvement, that she knew of the work while it was in progress, and that she received the benefit willingly.

In Schmalz v. Mead (1891) 125 N. Y. 188, 26 N. E. 251, affirming (1889)

plaintiff had never even seen the defendant, nor had any communication with her upon the subject of work to be done upon her house, and that he relied upon the statement of the husband as to the ownership of the property, and that his contract was made with the husband.

In Schummer v. Clark (1905) 107 App. Div. 207, 95 N. Y. Supp. 836, it was held that evidence of the following purport should have been submitted to the jury in a case where a lien was claimed for plumbing work: The defendants, at the time plaintiff was performing the work and furnishing the materials, resided close by the dwelling. The wife was fre

that it is furnished to the husband of the wife, to be charged to her, and upquently at the house when the work was in progress, and actually lived in it when the furnace was placed. The premises belonged to her. The husband was a carpenter and builder, and purchased the furnace and hardware, and they were charged to him. They were obtained, however, for the benefit of his wife, and were necessary to the completion of her house, and presumably enhanced its value, and she personally paid $20 on the account. The court said: "It is not a controlling circumstance that the goods were charged to the husband, when it does not appear that he was acting independently of his wife, or by virtue of any agreement with her whereby he was to pay for the improvement and no liability was to attach to her. When it is disclosed that she, and not the husband, owned the property, she ought to be charged with its improvement under the circumstances of this case. In the present case the only authority which the husband had was derived from the wife, and she had acquiesced in the improvements upon her property, and they inured to her benefit, and she is the only paymaster."

In Dennis v. Walsh (1891; Brooklyn City Ct.) 41 N. Y. S. R. 103, 16 N. Y. Supp. 257, the consent of the wife was held to be inferable from evidence which showed that she lived close to the premises in question, and saw the building in course of erection; that she was present when her husband had a conversation with the plaintiff's son about the work; and that she drew her own check to make a payment on account.

În Brunold v. Glasser (1898; County Ct.) 25 Misc. 285, 53 N. Y. Supp. 1021, the wife's consent was held by one of the county courts of New York to be predicable from evidence which showed that she was not only present at the making of the contract, but constantly visited the house in question while the work of erection was in progress, and that she mortgaged her property to defray the cost of building it.

(b) Decisions rendered with reference to statutes containing the words "knowledge and consent."

In Coorsen v. Ziehl (1899) 103 Wis. 381, 79 N. W. 562, it was held that the

on her property, and has a right to file
a lien to secure its payment." 1
consent of the wife to the erection of
the building upon which the lien was
claimed could not be inferred, where
the husband had testified that the
wife did not know of the work until
it was started; that she would not dare
to tell him to stop anything when he
had started; that he had no authority
from her to do the work, but had it
done on his own responsibility, and
did not act or assume to act as her
agent. The court said: "Consent can-
not be inferred from mere silence un-
der these circumstances. So far as
we are advised, she may have sup-
posed that the work was being done
upon the personal credit of her hus-
band. For that reason no element of
estoppel can intervene. Not having
been consulted as to the improvements,
and being under such arbitrary
dominion as the evidence shows, she
was not bound to have a row with her
husband, and order the workmen
from the premises, at the risk of hav-
ing her property encumbered by a
lien. Being a married woman, she
was not free to act entirely as she
pleased. Notwithstanding the liberal-
ity of modern legislation, married
women are somewhat under the
dominion and control of their hus-
bands, and such relation must be con-
sidered when it is sought to bind the
wife's property on the ground of rati-
fication by silence."

In Lentz v. Eimermann (1903) 119 Wis. 492, 97 N. W. 181, the claimant was held to be entitled to a lien, where it appeared that, soon after the excavation for the house in question was commenced, defendant knew it was being erected, and that subsequently she executed a mortgage on her land, and turned the money over to her husband, to be used in the building of the house.

See also McGeever v. Harris (1906) 148 Ala. 503, 41 So. 930, where the findings of the trial judge upon conflicting evidence (not stated) were upheld.

1 Bethell v. Chicago Lumber Co. (1888) 39 Kan. 233, 17 Pac. 813. The contention of the defendant that, as the findings showed that the husband was a contractor, and had written a contract with his wife to erect the improvements and furnish the material, and to receive certain compensation therefor, the plaintiff, if he

There is a similar clause in the Oklahoma statute.2

By § 7024 of Minn. Gen. Stat. 1913, it is provided that improvements upon real estate are presumed to have been made upon the authority of the owners. As applied to cases in which a lien is claimed on the land of a married woman, this enactment apparently produces the same effect as the Ontario one which is referred to infra. But its operation in this point of view has not so far as the writer knows, been discussed.

By 2521 of the Mississippi Code 1906, it is enacted that "all business done with the means of the wife by the husband shall be deemed to be on her account, and for her use." With reference to this provision, it has been was entitled to enforce any lien against said property, could do so only on the ground that he was a mere subcontractor, was thus disposed of: "It is true that a person dealing with an agent must, at his peril, know the rights of the agent in the premises, and if this contract had been made with any person other than the husband, this lien could not be upheld; but as the husband under the law has the right to contract, this rule cannot be applied in this case. The parties can rely upon the presumption that they were not dealing with the husband as agent, but as owner under the statute. If the claim of the defendants can be upheld, then the way is left open for great wrongs and frauds to be perpetrated. A contract is entered into between husband and wife; no disclosure is made of the extent of that contract; material is furnished; afterward, when the time for filing a subcontractor's lien has expired, a contract is produced under which the building was erected, the wife receiving the benefit of the transaction, and the husband and wife thereby defeating the Lien Law.

2 In Limerick v. Ketcham (1906) 17 Okla. 532, 87 Pac. 605, the court, relying on the Bethell Case (Kan.) supra, laid down in the syllabus prepared by it the following doctrine: "Where the wife is the exclusive owner of real estate, and the husband enters into an oral contract with a materialman to furnish material for the erection of a building on such real estate, the materialman is entitled to a lien on the property for the amount

held that a husband who had, as contractor with his wife for the erection of a house, purchased materials for it, was to be regarded as having made the purchase as her agent, and consequently that a lien might be enforced against her property for the amount due to the vendor.3

By 4 of the Pennsylvania Act of June 4, 1901, P. L. 431, it is provided that if an owner knowingly permits any person acting as if he were the owner to make a contract for which a claim could be filed, without objecting thereto, he shall be treated as ratifying the act of such person; in which case the claim may be filed against the real owner with the same effect as if he had made the contract.*

By 5 of the Ontario Mechanics' of the material furnished and used in such building."

See also Block v. Pearson (1907) 19 Okla. 422, 91 Pac. 714.

3 BANKS V. PULLEN, ante, 1013. The court said: "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."

4 In National Supply & Constr. Co. v. Fitch (1913) 55 Pa. Super. Ct. 212, a case within the purview of the statute was held to be shown by evidence. to the effect that the contract in question was in the name of the husband; that the plans and specifications exhibited to the plaintiff as a basis for its bid on the material desired were also in the name of the husband; that the husband had charge of the business for his wife, and acted for her in procuring the contracts and looking after the completion of the building in question; and that, apart from the constructive notice arising out of her recorded deed, the plaintiff had no knowledge that the wife owned the property. The court was also of opinion that there was some evidence of the ratification defined in the same section, as the wife "was about the premises from time to time, and had notice that the plaintiff was furnishing material for the construction of the house," and "no notice of repudiation was given to the plaintiff, nor was any such notice posted on the premises."

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.

• 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: "The presumption 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.



Iowa Supreme Court - December 14, 1918.

(Iowa,, 169 N. W. 646.)

Witness wife against husband assault to rape.

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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


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2. An instruction in a prosecution

for assault with intent to rape that it is no defense that accused expected to accomplish his purpose without oppo

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