Pierce Engineering Co. v. Chohon

HERNDON, J.

This is an action brought against appellant, Agnes D. Chohon, and her husband, Alexander T. Chohon, to foreclose a mechanic’s lien. The defendant husband defaulted. In the trial court appellant did not question plaintiff’s right to foreclose its lien upon the property described in the complaint, but urged that the evidence failed to establish any personal liability on her part, so that there was no basis upon which a deficiency judgment could be entered against her. The trial court held both defendants personally liable and rendered judgment against them for the amount prayed, ordered a sale of the property, and decreed that plaintiff should have judgment against defendants for any deficiency.

On her appeal from the judgment, appellant contends that the findings of the trial court upon which the personal judgment against her is necessarily based are without support in the evidence. Accordingly, we shall recite the pertinent facts revealed by the record.

Appellant and her husband were at all material times the owners of the described real property. The record is entirely silent as to the manner in which appellant acquired her interest in the property and the manner in which title was held by the defendants.

On or about November 5,1958, plaintiff undertook to render certain services and to furnish materials to defendants in connection with the improvement of a building located on said real property. The work involved the installation of an air-conditioning system. On November 10, 1948, a written contract was executed describing the work to be done and stating the contract price to be the sum of $12,520. This contract was signed by plaintiff and by appellant’s husband, but it was not signed by appellant. There is no evidence that appellant authorized her husband to act as her agent in signing the contract.

The work of improvement was completed in March of 1959. According to the undisputed evidence, the reasonable value

[518]

of the work done and materials furnished was $12,520, no part of which has been paid. Plaintiff’s lien was duly filed.

The complaint states three causes of action. The first cause of action alleges all the facts essential to establish plaintiff’s right to foreclose its lien, including the execution and breach of the written contract. The second cause of action is in the form of a common count for materials and services sold and furnished to defendants of the reasonable and agreed value of $12,520. The third cause of action is on an amount stated. The judgment against appellant is based upon findings that the essential allegations of the first two causes of action are true. The court found that no account was stated as to appellant.