O'Neil Lumber Co. v. Greffet , 154 Mo. App. 33 ( 1910 )

NORTONI, J.

This is a suit to enforce a mechanic’s lien. The finding and judgment were for plaintiff and defendants prosecute the appeal.

Plaintiff is a materialman and furnished the lumber for the construction of a small residence on defendant Rosalie Greffet’s lot of ground at the instance of her husband, defendant J. E. Greffet, and one, Ogden, who was the original contractor for its construction. The suit is for $201.82 and originated in the court of a justice of the peace. Plaintiff recovered a personal judgment in the justice court against J. E. Greffet, the husband of the owner, and Ogden, the original contractor, and a special judgment enforcing’ a lien on the property of the owner, defendant Rosalie Greffet, and all of the defendants appealed to the circuit court. After the appeal to the circuit court was-perfected and before the trial in that court, Ogden, the original contractor, departed this life and as to him further proceedings were dismissed. In the circuit court, the suit proceeded against the defendants, J. E¡ Greffet and Rosalie Greffet, his wife, alone, and the court gave a personal judgment against J. E. Greffet on the theory that he, together with the original contractor, Ogden, personally contracted the debt for lumber, and a special judgment against Mrs. Rosalie Greffet enforcing the lien against her property. It is from this judgment against the husband and wife the appeal is prosecuted and it is argued it should be reversed for the reason the original contractor, Ogden, is not a party thereto. Were the suit one by a subcontractor or -materialman who derived his right to proceed against the property of the owner solely through the privity which lies in the relation of original contractor, we. believe the argument would inhere with much force. But it is not so in the particular circumstances of the case, for here it appears the indebtedness for the lumber involved was contracted by defendant J. E. Greffet as the agent of his co-defendant, Mrs. Greffet, the owner, who was his undisclosed principal, and Ogden, the original contractor, jointly. The proof is abundant to the effect defendant J. E. Greffet, who was ostensibly the owner of the property, for it does not appear that he disclosed the title was in his wife, and Ogden, the contractor, jointly negotiated with plaintiff and purchased the, lumber and material set forth, in the lien account and that the credit was extended by plaintiff to J. E. Greffet and Ogden jointly. J. E. Greffet, the ostensible owner, and O'gden, the original contractor, having thus jointly purchased the lumber and contracted the indebtedness, no one can doubt that a personal liability attached against either one or both for the debt, and the mere fact that the suit proceeds against one of the debtors alone, without the original contractor being a party, is immaterial in the circumstances stated, if it appears such debtor against whom the suit proceeds was sufficiently vested with authority to bind the property of the owner, Mrs. Greffet. It is true in those cases where the debt of the material man or sub-contractor is sought to be enforced as a lien against the property of the owner through the privity which, obtains in the' contract for the improvement-between the owner and the original contractor the original contractor is an essential party to the suit. Such is true in part because the original contractor is the debtor and should be called upon to defend. [Wibbing v. Powers, 25 Mo. 599.] And further because the property of the owner may not be reached for the debt of the contractor except through the implied authority in the contract between the owner and the original contractor to contract debts on the security of the property. For though the original contractor is not the agent of the owner so as to bind him in all respects, as decided in Deardorff v. Everhartt, 74 Mo. 37, 39, there can be no doubt that the principle upon which he may obligate the property of the owner to the extent of the market value of materials is 'that of an implied agency of the owner for the purpose. [Morrison v. Hancock, 40 Mo. 561; Dougherty, etc., Lumber Co. v. Churchill, 114 Mo. App. 578, 587, 90 S. W. 405; see, also, Winslow v. Mc-Cully, 169 Mo. 236, 69 S. W. 304.] The identical liability for the debt exists here against defendant, J. E. Greffet as it did against the original contractor, Ogden, for his principal was undisclosed and besides an agency for the owner appears. It is stipulated in the case that J. E. Greffet had authority as agent of his wife, the owner, to make the improvements and contract the indebtedness for the material. The ag-ency of the husband in this case is positive and expressly admitted whereas that of an original contractor is only implied. If it be suggested that because of such express agency of J. E. Greffet he bound his principal to answer personally for the debt, it is to be answered that he was the ostensible owner when the debt was contracted by him and to him the credit was extended, for his principal was not disclosed at the time. It is true the doctrine of the law with respect to undisclosed principals obtains in mechanic’s lien matters as it does in other cases. [Winslow v. McCully, 169 Mo. 236, 243, 69 S. W. 304.] But if an agent deals as the ostensible principal without disclosing his agency, he becomes personally liable for the debt so contracted and continues so, though the creditor afterwards discovers the undisclosed principal, unless the creditor sees fit to waive his right to proceed against the agent and sues the true principal for the debt instead. [Mechem on Agency, secs. 554, 695, 696.] In the instant case, the creditor elected to sue the agent who had contracted the debt and the principal only as owner of the property to the end of enforcing the lien. No one can doubt its right to so elect even after discovering the principal, and we perceive no reason why the suit should fail though the original contractor be not a party. The agent, J. E. Greffet, in the circumstances of this case, performs the identical office on the identical principle as that of the original contractor where tide suit is to enforce tbe lien through privity with him against the property.

There is a suggestion in the brief that the proof fails to show the material furnished entered into the building on which the lien is sought to be enforced. Upon examining the record, we find the argument to be wholly without merit under the rule of decision which obtains in this state.' [See Darlington Lumber Co. v. Harris, 107 Mo. App. 148, 80 S. W. 688.] The judgment is for the right party and should be affirmed. It is so ordered.

Reynolds, R. J., and Caulfield, J., concur.