Whipple v. Webb

The appeal of Jennie . Webb from the justice’s court judgment is certified to this court. The evidence shows that upon two adjoining lots in the village of Glens Falls new houses were being erected, and that Charles E. Webb, the husband of the appellant, inquired of plaintiffs the cost of putting in certain plumbing and fixtures. The price was given at $81 for each house, and he told the plaintiffs to do the work, and it was done. The work for the corner house was paid for, and part of the work upon the other house. The judgment in this case represents the balance unpaid for the second house.

At the time of the negotiation with the plaintiffs, Webb stated that he was building the houses to sell. Shortly after the work was done, the appellant conveyed the second house, the title of which stood in her name. It does not appear who had the title to the lot upon which the first house was built. No direction was made to the plaintiffs as to whom the bill should be charged to, but they charged it to the appellant’s husband.

Upon this appeal it is to be assumed that the justice found every fact and inference favorable to the plaintiffs which the evidence fairly.justified. The plaintiffs had no information as to who was the owner of the property; neither of the defendants was sworn upon the trial. It does not appear that the appellant or her husband ever lived in this house, or that it was built for the purpose of a family residence., The justice had a right to find that it was being built for sale, and had the right to infer that it was being built by appellant for that purpose. The husband not having directed the charge to be made to him, it is fair to assume that the parties understood the work was for the owner. The appellant knew the work was going on, was around the houses while the plumbing was being put in, and made some directions as to alterations in the plumbing in the house in question. The only purpose of the building of this house being to improve the property and for the purposes of sale, the fair presumption is that the work was done at the request of the appellant, and that she was the undisclosed principal for whom the husband was acting. Cutter v. Morris, 116 N. Y. 310 , 22 N. E. 451 ; Boynton v. Squires, 85 Hun, 128 , 32 N. Y. Supp. 467 .

This case differs materially from those relied upon by the appellant. In Zeigler v. Galvin, 45 Hun, 44 , it was found as a fact that the husband contracted for the work, expected to pay for it, and that she did not expect or intend to pay for it, and was for improvements upon the family residence, which it was clearly the duty of the husband to make. Valentine v. Appelbee, 87 Hun, 1 , 33 N. Y. Supp. 762 , was a question of pleading, and it does not appear for what purpose the house was being erected. In Willson v. Underhill, 83 Hun, 233 , 31 N. Y. Supp. 585 , the husband carried on his farming business upon the wife’s farm; he having the profits of it, and paying the expenses. Plaintiff had dealt with him for 20 years. It was held that the wife was not liable for goods sold and charged to him. In Snyder v. Sloane, 65 App. Div. 543 , 72 N. Y. Supp. 981 , it does not appear that the wife owned the

Judgment affirmed, with costs.