Westberg v. Whittiken

PLUMMER, J.

The plaintiff had judgment against R. E. Whittiken and Mayme B. Whittiken, his wife, for the sum of $985.75, and also for the foreclosure of a mechanic’s lien on certain property described in the complaint. From this judgment said defendants appeal.

The action was originally begun for the collection of $1750 and the enforcement of a lien to secute the payment thereof, on account of work and labor performed by the plaintiff in furnishing plastering material and plastering a certain residence constructed by R. E. Whittiken and Mayme B. Whittiken, his wife. After the beginning of the action the sum of $729.25 was paid on said account. The record shows that the defendants Whittiken constructed a certain residence by day labor; that no contract for the erection of the building was ever entered into by the defendants with anyone. The record further shows that at about the time of the beginning of the erection of the building referred to,- the defendants Whittiken employed A. B. Maescher and V. E. Maeseher, doing business as DeLuxe Building Company, as their agents, to take charge of the construction, and manage the construction of the building referred to. The complaint alleges that after entering upon the construction of the building A. B. Maeseher and V. E. Maeseher, doing business as DeLuxe Building Company, as agents of the owner of the described premises, entered into an agreement with plaintiff whereby the plaintiff was to furnish certain materials and labor necessary to do the interior and exterior plastering required for the construction of the building, etc. This allegation of agency is not denied in the answer, and, therefore, stands admitted. The evidence, however, is in accordance with the allegations of the complaint. The court found that the DeLuxe Building Company was acting as agent of the owner of the property, and was acting as the superintendent of the construction of the building; that the building was being constructed by day labor, and no contract was entered into between the owner and the DeLuxe Building Company for the construction of the building. In other words, there was no contrae

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tor, but the DeLuxe Building Company was acting as the agent and superintendent of the owner of the property. Upon the completion of the work by the plaintiff, the plaintiff made out and delivered to the DeLuxe Building Company a statement thereof, showing the amount due in the sum of $1750. The DeLuxe Building Company thereupon executed and delivered to the plaintiff certain trade acceptances for the amount thereof, and at the same time the plaintiff indorsed on the account, the word “paid.” The account is in the following words: