
    Owens and another vs. Northrup.
    
      Evidence — Agency.
    1. In an action to enforce a mechanic’s lien, and for a personal judgment against N. for labor and materials furnished at the request of W., in building a house, where the question was whether W. acted as N.’s agent, all facts bearing on the question of such agency should be admitted in evidence; and W.’s testimony that he was such agent is not conclusive.
    2. Thus, it was error to reject evidence of conversations between W. and IT. before the house was built, in which it was agreed that N. should sell said lot to W., and receive back a mortgage for the purchase money after the house should be built; and also of conversations in which W. represented himself to N. and third persons as the owner of the house.
    3. Evidence that N. furnished W. a plan for said house, having been received as tending to confirm the fact of such agency, it was error to reject evidence for the defense, that the house was not built according to such plan.
    4. Evidence of statements or admissions of W., inconsistent with his alleged agency, was also admissible to impeach his credibility, after he had testified for the plaintiff that he was such agent.
    APPEAL from tbe Circuit Court for Winnebago County.
    Action for tbe enforcement of a mechanic’s lien. Tbe plaintiffs, Owens and Waldo, filed tbeir petition for a lien upon tbe lot of Northrup, tbe defendant, for labor performed by plaintiffs, as carpenters and joiners upon defendant’s building. Tbe case comes up solely upon exceptions to rulings of tbe court on questions of evidence. Upon tbe trial, plaintiffs produced as a witness, one Wilson, who testified that be resided at "Winneconne in 1869, and was engaged in a foundry and machine shop, and that plaintiffs were then engaged in tbe carpenter business; that Northrup then lived at Ripon, and that witness employed plaintiffs in that year to build a house for Northrup, under whose instructions witness was acting; that Northrup bad given him instructions to visit tbe different carpenter shops and make tbe best bargain possible, and that be would stand by it, Northrup sending witness a plan of tbe bouse be wished built; plaintiffs were to take all they could out of tbe foundry in payment, and tbe balance in money on tbe completion of tbe bouse; that Northrup bad shown witness where to build tbe bouse, saying that tbe lot belonged to one Bovay. “ I was operating tbe foundry; Mr. Northrup claimed tbe foundry; tbe bouse was completed some time tbe latter end of November or tbe first part of December; I moved into it; I have paid Northrup rents, and I lived in tbe bouse for some time and did not pay him any rent; I finally bad to pay him rent; be gave me notice to leave tbe bouse, to that effect; if I would pay him rent I might live in tbe bouse; during tbe time tbe bouse was building, Northrup sent me $125 to be used .in tbe construction of it; this money, I believe, was sent sometime in November; I used tbis money for doors, sash, bricks, building a shed, privy and extras on the house; this money was sent while the plaintiffs were at work.”
    Upon re-cross-examination, witness testified as to the ownership of the foundry, that it was run in the name of Wilson & Brockway, Northrup having a claim upon it, witness operating it under a contract, by which he and Brockway were to purchase it, witness being allowed to take out $3 per day, and the balance being applied on the contract. Witness being asked whether he and Brockway were running the foundry for themselves, or whether they had the avails of it to apply on the purchase, the question was objected to, and the objection was sustained. Witness further testified, that he built the house as near as possible, to the plan sent by Northrup, which was lost before the house was finished, and he did not send for another; Northrup was at Ripon, and once in a while at Winneconne, and saw the house while it was building; that Northrup built the house for witness to have when he got ready to pay for it. Witness being asked whether the price of the lot was agreed upon, the question was objected to by plaintiff, and the objection sustained. Witness being further asked whether he had a conversation with Northrup, in which it was agreed that Northrup should sell the lot to him on which he was to build, and mortgage it back for the purchase money, the question was objected to by plaintiff’s counsel, and the objection was sustained. The witness having testified that he told the plaintiffs he was building the house for Northrup, when he employed them, and that the house was built for witness’ accommodation, if he should pay for it, his testimony upon this point was excluded. He was then asked whether he had not, in a certain conversation with Northrup and Olmstead, stated that he was tired of paying rent, and was in a hurry to get into his own house; whether he had not stated that he was going to eat Ms Ohrist-mas dinner in bis own bouse, referring to tbe one in question; wbetber there was any agreement as to wbat be was to pay Northrup for tbe bouse; wbat was tbe agreement as to tbe purchase of tbe lot; wbetber there was any agreement as to tbe amount be was to expend upon tbe bouse, and wbetber be bad ever attempted to get tbe money from Northrup to pay plaintiffs — to all of which questions plaintiffs’ counsel objected, and tbe objections were sustained. Testimony was also excluded as to alleged statements by Northrup, that be bad never cbrected witness to build tbe bouse, and bad never talked with him upon tbe subject.
    
      B. 0. Oivens, one of tbe plaintiffs,
    testified that be bad agreed with Wilson for tbe budding of tbe bouse; that Wilson came to plaintiffs with tbe plan, and stated that Northrup was going to build a bouse for him. Defendant’s counsel then objected to any detailed statement of any contract between plaintiffs and Wilson, upon tbe alleged representation of Wilson that be was acting for Northrup, but tbe objection was overruled.
    Defendant, Northrup, being sworn as a witness on bis own behalf, testified that be bad never given. Wilson any such authority as be bad testified to. Defendant further testified as follows :
    “ At tbe time Wilson says I authorized him to employ men to build bouse, I says, I will go on and build you a bouse, with tbe idea that I must wait for my pay, and go on and build tbe bouse; I went on further; I told him, you can trade a couple of lots, you can trade one to tbe carpenter and one to tbe mason ; I said, you can use it; I will bold a mortgage on your property, on tbe bouse and on tbe lot, until you can pay it, as security; be was a great deal involved; I wanted to help him; I told him I bad built a bouse very cheap, and I would send him a plan of tbe bouse I bad built on a farm I bad; I thought that should not involve him so much but be coirld pay for it, and I sent him up a plan; that conversation amounted to nothing; I know nothing about bis building a bouse or commencing it; T think there was nothing further said at that time. * * * I gave no other authority beyond what I have stated; never gave him any authority to make any contracts; I never gave him, Wilson, any authority to build a house for me at Winneconne, as my agent; I recollect a conversation between myself and Wilson at the grocery store of Lymans, in Winneconne, in the back part of the grocery, at which Pisher was present.” Testimony as to the details of this conversation, being objected to, was excluded. Defendant further testified as follows : “ I sent Wilson some money; I sent him at Winneconne $25, and I paid at another time, $100; Nov. 12th he came down to Ripon, and had got his house on his hands and wanted some means to pay for it; Nov. 12th there was an arrangement that I should send him some money, mailed at Ripon, to pay his help; this was the first arrangement he made with me about any means to build this house.” Prom all of the rulings of the court excluding evidence .offered by defendant, and sustaining objections to questions put by his counsel, defendant appealed.
    
      Qillet & Taybr for appellant.
    
      Felher & Weisbrod, contra.
    
   Dixon, C. J.

This case comes up solely upon exceptions to evidence, or rather to the rulings of the court in excluding certain evidence offered by the defendant on the trial, and in sustaining objections to sundry questions put by him to the witnesses. The action is to enforce a mechanics lien, and the main point or gist of controversy, seems to be as to the personal liability of the defendant for the demands of the plaintiffs. The work was done, and some materials furnished by the plaintiffs, under a contract entered into by them, with one Wilson, who claimed to act as the agent of the defendant in the building of a house. The agency of Wilson is in dispute. The defendant denies that he was his agent, or had any authority to contract for him or in his name, and that became the point of support at the trial, upon which the personal liability of tbe defendant rested. Tbe authority of Wilson, if be bad it, existed merely in parol. No writing was ever made or given, and nothing but a verbal agency was claimed. Tbe plaintiffs resided at Oshkosh, Wilson at tbe village of Winne-conne, where tbe bouse was built, and tbe defendant at Eipon, which places are distant from each other, respectively, from twelve to twenty miles. It does not appear that tbe plaintiffs and defendant ever saw each other, or that any conversation or correspondence ever took place between them, before or during tbe time of tbe building of tbe bouse. It appears that tbe defendant was tbe owner of a foundry at Winneconne, which Wilson and one Brockway bad contracted to purchase, and which they were engaged in operating under tbe contract, in a way that a certain portion df each day’s earnings was to be applied as payment on tbe contract. It appears also, that Wilson’s dwelling-house was not situated near or convenient to bis business, and that be wanted another which was more so. To obtain this, it became necessary to build, and Wilson being in straightened circumstances, applied to tbe defendant for assistance, which the defendant promised. Tbe defendant furnished Wilson with tbe plan of a bouse, such as be himself bad built, together with an estimate of tbe quantity of lumber required, and tbe probable cost. It likewise appears that tbe bouse was built upon a lot in Winneconne, not owned by tbe defendant, but tbe title of which was in one Bovay. It does not appear that tbe defendant was ever at tbe bouse during tbe progress of tbe work, or manifested any particular interest in, or gave any directions respecting it, although be was at Winneconne several times during or about that period. It was furthermore in evidence, by tbe testimony of both Wilson and tbe defendant, that tbe defendant advanced Wilson $125 toward paying for tbe bouse. Wilson bought tbe materials, made tbe contract, supervised and directed tbe construction, and transacted all tbe business with respect to tbe building. Thus far there is no essential disagreement between Wilson and tbe defendant. Tbe other testimony requisite to a proper understauding of the case, and given by tbe parties and their •witnesses, appears from the report.

The sole, or almost the sole, reliance of the plaintiff to establish the agency was the testimony of Wilson. He testified to it positively. The defendant, when he came upon the stand, as positively denied it. On the cross-examination of Wilson, counsel for the defendant asked him this question: “Were you and Brockway running the foundry for yourselves, or did you have the avails of it to apply in the purchase of the foundry? ” The testimony was excluded by the court and the defendant by his counsel excepted.

Wilson had testified that the defendant “ built the house with the design for me to have it some time when I got ready to pay for it — it was for my accommodation;” whereupon the defendant’s counsel asked this question: “ Was the price of the lot agreed upon ? ” The question was objected to by the plaintiffs, and excluded by the court, and the defendant excepted.

The witness was interrogated respecting a conversation which defendant claimed took place between himself and witness, the last of August or first of September before the house was built and contract made with plaintiffs, in the back part of Lyman’s grocery in Winneconne, and was asked: “ Did you have a conversation then, in which was talked over between you and Northrup, in which he was to sell you the lot on which you were to build and you were to mortgage it back for the purchase money after you built the house?” This question was objected to by plaintiff, objection sustained and exception taken by defendant. And the court thereupon struck out some of the testimony of the witness, in which he stated that “ it was designed for me to have the house some time or other, if I paid for it; he (defendant) built it for that purpose; I could not say the exact date I commenced payment.”

The witness then stated that he recollected being at Ripon some time in October, that he was in Olmsted & Miner’s store at that time, and saw the defendant there, whereupon the following questions were put to bim: “ Did you, at tbat time, state in the conversation with Northrup and Olmsted, in the store, that you had got tired of paying rent, and was in a hurry to get into your own house?” “Did you state, at that time and place, to Mr. Olmsted, that you were going to eat your Christmas dinner in your own house, referring to this house?” “Was there any agreement of what you were to paj Northrup for this house and lot?” “What was the agreement between you and Northrup concerning the purchase of the lot by you?” Was there any agreement between you and Northrup as to the amount you were to expend on this house ?” And again the witness was asked, referring to the contract made with the plaintiffs and the money due them: “Did you ever request Northrup, or make any attempt to get the money of him, to pay them?” All these questions were in like manner objected to by counsel for the plaintiffs, and excluded by the court, under exception on the part of. the defendant.

Some other questions were likewise put to the same witness, and excluded, the propriety and relevancy of which do not clearly appear. They related to an alleged conversation between the defendant and the witness, in which the defendant denied that he had ever directed the witness to build the house, or had any contract with him about it. This testimony was clearly inadmissible, unless the proposition was to show that the witness expressly or tacitly assented to the correctness of the statements made by the defendant, which does not appear.

And on the examination of the defendant as a witness, the following questions were ruled out at the instance of the plaintiffs: “Was this house that was built such a house as that plan called for — was it according to the plan?” The defendant testified that he recollected a conversation between himself and Wilson, at the grocery store of Lyman in Winneconne, in the back part of the grocery, at which Fisher was present, and was asked to state what that conversation was. The plaintiff objected and the court refused to allow him to do so. The defendant was then asked: “ Was it talked witk Wilson the last of Anggnst or first of September, in the back part of Lyman’s grocery at Winneconne, that Eisher wanted to bnild a house, and that Wilson and Eisher would go down to Buttes desMortes together and buy lumber for their two houses, Eisher paying a part in money and Wilson making arrangements to pay the balance out of his foundry ?” This question was likewise objected to by the plaintiffs, and ruled out under exception taken on the part of the defendant.

It is obvious to our minds, that the court was in error in the several rulings to which attention has been called, and that the origin or ground of such error on the part of the learned judge, consisted in its having improperly assumed for the purpose of the evidence offered, that Wilson was in fact the agent of the defendant, authorized by the latter to build the house for bfm and in his name. Such is the error as it seems to us, into which the learned counsel for the plaintiffs have fallen in their argument in this court.

Assuming that Wilson was in fact the agent, with authority to do just what he did in the name of the defendant, then it is very clear, as counsel argue, that it was wholly immaterial what the relations between Wilson and the defendant were, with respect to the foundry or the running of it, or what agreement had been entered into between them as to the house after it should be built, or as to the title of the lot, or whether the house was built according to the plan furnished or suggested by the defendant, or finally what conversations had taken place between them, or what statements or admissions Wilson might have made inconsistent with or in disproof or denial of the fact that he was agent. All these positions are very correct, assuming the agency, but without such assumption, or supposing that Wilson may not in truth have been agent, which was the very fact in issue and to be found by the jury, it is manifest that they are entirely incorrect. It is with reference to the disputed fact of agency, as bearing upon that and tending to show that Wilson was not or may not bave been acting as agent, that we think the questions put and testimony offered were admissible. For this purpose we think the contract relations between Wilson and the defendant, respecting the foundry, their agreement, if any, as to the house and lot, the bargain for or proposed purchase by Wilson of the -lot, if that was so, and the price, and in fine, all the business transactions and relations then presently existing between the defendant and Wilson, at Winneconne, and which were connected with and led to the building of the house, were admissible and ought to have been received in evidence before the jury. With all these facts fully exhibited before the court and jury, it might have appeared after all that Wilson was not acting in the representative capacity which he claimed, and that he was not the agent, as he testified. The question of. agency in such a case is a mixed one of law and fact. Wilson’s statement, that he was acting as agent, did not conclusively demonstrate or prove that he was so, or that he had authority personally to bind the defendant. The defendant was entitled to have all the facts before the court and jury, in order that it might be seen whether Wilson was agent, or what the conclusion of the law would be upon the subject.

Evidence that the defendant furnished a plan for the house, was received as tending to establish or confirm the alleged agency. On the other hand, evidence that Wilson rejected or did not follow the plan, was equally admissible and potent for the opposite purpose.

And evidence, if the facts were so, that Wilson had made statements and admissions out of court, inconsistent with those sworn to by him as a witness in it, respecting his agency, or how or for whom he was building the house, was clearly admissible for a well recognized purpose, and upon a very familiar principle. A person claimed to have been the agent and authorized- to bind another as his principal, called upon the stand as a witness to prove such agency, by his own testimony, may be impeached or discredited with respect to the fact so testified by Rim, the same as any other witness, or the same as if he were testifying to any other fact. It may be shown of him, as of any other witness, that he has made different and conflicting statements elsewhere, as that he was not acting as agent, or authorized so to act, and these statements may be introduced for the purpose of contradicting or discrediting him. This is a very common method of impeaching the credibility of witnesses, and several of the questions asked should have been answered on this ground.

By the Court — The judgment of the court below is reversed and a venire de novo awarded.  