
    Farmilo et al. v. Styles.
    (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    Mechanic’s Lien—Husband and Wife—Aqenot.
    Defendant, a married woman, was sued to enforce a mechanic’s lien for work done in the erection of a building on her land. Plaintiffs did the work under a contract with defendant’s husband, who represented himself as the owner of the lot. Defendant testified that she orally contracted with her husband to build the house for $3,000, all of which she paid him in installments, before plaintiff’s notice of lien was filed, except the sum of $290, which he owed her. She further stated that she owned several lots in the city, and that her husband owned none, and that she never had occasion to employ any one but him to look after the work on her buildings, and always left that to him. Held, in view of the interest of defendant in the result of the action, and the nature of her testimony, there was evidence from which the jury might infer that the husband contracted as her agent, and it was therefore error to direct a nonsuit.
    Appeal from circuit court, Albany county.
    Action by Henry Farmilo and Martin Smith against Matilda M. Styles, to foreclose a mechanic’s lien. The plaintiffs were nonsuited at the close of the evidence. William Y. Styles, husband of the defendant, made a contract with the plaintiffs to do the mason work upon a house which he represented he was about to build upon a lot in Cohoes, which lie represented belonged to himself. The plaintiffs did the work, and, upon its completion, a balance of $218 remaining unpaid, they filed notice of lien for the amount against the defendant, who was the owner of the house. The defendant testified that she made an oral contract with her husband, William Y. Styles, to build the house for $3,000, which she.paid him in full before the plaintiffs filed their notice of lien. The trial court nonsuited the plaintiffs upon the ground that their contract was with the husband and the notice of lien was against the wife; also because the wife had fully paid her husband before notice of the lien. The plaintiffs asked to go to the jury upon the question whether the husband, at the time he made the contract, was not acting as the agent of his wife. This was refused. Plaintiffs appeal.
    
      22. A. Strong, for appellants. J. 2?. Crawford, for respondent.
   Landon, J.

The contract was in the name of the husband, but, as the wife was the undisclosed owner, if the husband was in fact acting as the agent of his wife, it was competent for the plaintiffs to file their notice of lien and proceed against her. We think the request of the plaintiffs to go to the jury upon the question whether the husband did not act as the agent of his wife should have been granted. The testimony of the wife is to the effect that her husband procured this house to be built for her, and at her request, and that she furnished him from time to time with money to pay for it, as the work progressed. The only difficulty in the ease arises from her testimony that she made a contract with her husband that he should build it for the sum of $3,000, and that the money she paid him was upon this contract, except the sum of $290, which she had previously lent him, and she applied this indebtedness to complete the total payment. The contract, she says, was oral. She further testified that she had several lots and buildings in Cohoes; that her husband had none; that she never had occasion to employ anybody except her husband to do any work on any of her buildings; that she left that to her husband to look after. How, this secret contract between herself and her husband, by means of which she could collect the old debt her husband owed her, and deprive the plaintiffs of their just pay, does not commend itself to judicial favor. Possibly it was an afterthought. The testimony upon which it rests ought to be subjected to that scrutiny which her interest and her advantage suggest, and, if so, possibly the jury would make a finding upon it in accord with substantial justice. The judgment is reversed, and a new trial granted; costs to abide the event. All concur.  