GENERAL AIR CONDITIONING COMPANY v. Douglass

84 S.E.2d 828 (1954)

241 N.C. 170

GENERAL AIR CONDITIONING COMPANY, Inc. v. Charles B. DOUGLASS and wife, Olive J. Douglass; Douglas A. Johnson and wife, Lottie M. Johnson; Durham Bank & Trust Company, Trustee, and Home Security Life Insurance Company.

No. 450.

Supreme Court of North Carolina.

November 24, 1954.

*830 Bunn & Bunn, Raleigh, for plaintiff-appellant.

Howard E. Manning and Charles L. Fulton, Raleigh, for defendant Olive J. Douglass, appellee.

*831 Poyner, Geraghty & Hartsfield and James R. Trotter, Raleigh, for defendants Douglas A. Johnson, Lottie M. Johnson, Durham Bank & Trust Co., trustee, and Home Security Life Insurance Co., appellees.

PARKER, Justice.

Plaintiff alleged in its complaint that "Charles B. Douglass acting for himself and as agent for his wife, Olive J. Douglass, entered into an entire and indivisible contract with plaintiff" to install a warm air type heating system complete in a house on the lot described in the complaint. The plaintiff contends such an agency can be implied from the facts in evidence.

All the defendants in their answers denied that Charles B. Douglass acted as agent for his wife. His wife in her answer alleged as a defense that she did not know plaintiff, had no dealings with it, had no knowledge that it placed any materials, or did any work on the property described in the complaint.

"A husband is not jure mariti the agent of his wife, and if such agency is relied upon it must be proven." Pitt v. Speight, 222 N.C. 585, 24 S.E.2d 350, 351, and cases cited. No presumption arises from the mere fact of the marital relationship that the husband is acting as agent for the wife. There must be proof of the agency. Pitt v. Speight, supra; 26 Am. Jur., Husband and Wife, Sec. 228; 41 C.J.S., Husband and Wife, § 70.

Plaintiff offered the testimony of two witnesses: the defendant Charles B. Douglass offered no evidence. The evidence tended to show these facts: Charles B. Douglass alone signed the contract sued upon. Plaintiff rendered the bills to him only for the work done under this contract. The manager of plaintiff testified all the negotiations were with Charles B. Douglass, that he had never met Mrs. Douglass. On cross-examination he said we dealt with Charles B. Douglass; all the checks we received for the jobs were from him; in all our dealings with him we never have entered into any agreement with Mrs. Douglass, and did not know Mrs. Douglass. The plaintiff has allegation that Charles B. Douglass was acting as agent for his wife, but there is a total failure of proof of such agency, or of facts from which it can be implied. Allegation without proof is insufficient. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147. Both must concur to establish a cause of action. Billings v. Renegar, 241 N.C. 17, 84 S.E.2d 268; Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911.

The plaintiff further contends that Olive J. Douglass ratified the contract made by her husband and plaintiff in the present case; and if she did not ratify it, that she is estopped by her conduct and acts to deny that her husband had implied authority to act as her agent.

The substance of ratification as distinguished from estoppel is that ratification confirms conduct, and estoppel exists where one is induced to act to his prejudice. 2 C.J.S., Agency, § 34b.

"The doctrine is well settled that in order that an act or contract may be the subject of ratification by one other than the one who performed the act or entered into the contract, the latter must have, at the time of performing the act or of entering into the contract, professed, represented, purported, assumed, or undertaken to be acting as agent for, or on behalf of, the one alleged to have subsequently ratified the act or contract." Annotation, 124 A.L. R. 893 et seq., where the cases are assembled.

In Flowe v. Hartwick, 167 N.C. 448, at page 453, 83 S.E. 841, at page 844, it is said: "It is well understood that, in order to a valid ratification, when an unauthorized contract has been made for alleged principal, the agent must have contracted or professed to contract for a principal, and the latter must signify his assent or his intent to ratify, either by words or by conduct." See also Rawlings v. Neal, 126 N.C. 271, 35 S.E. 597; Jones v. Bank, 214 N.C. 794, 1 S.E.2d 135; 2 Am.Jur., Agency, Sec. 222.

*832 All the evidence shows that not only in the instant case, but that in all the transactions of plaintiff with Charles B. Douglass, that plaintiff dealt with Charles B. Douglass alone. Charles B. Douglass in all these transactions, including the present one, did not act or profess to act for his wife. There is no evidence of ratification.

This Court said in Barrow v. Barrow, 220 N.C. 70, 16 S.E.2d 460, 461: "`Where a person by words or conduct represents or permits it to be represented that another is his agent, he will be estopped to deny the agency as against third persons who have dealt, on the faith of such representation, with the person so held out as agent, even if no agency exists in fact'." In the present case there is a total failure of evidence to bring the action within the principle of estoppel.

An estate by entireties cannot be aliened, encumbered, nor a lien acquired upon it without the assent of both husband and wife; nor would a judgment against either be a lien upon the property. Winchester-Simmons Co. v. Cutler, 199 N.C. 709, 155 S.E. 611; Davis v. Bass, 188 N. C. 200, 124 S.E. 566; Finch v. Cecil, 170 N.C. 72, 86 S.E. 992; Hood v. Mercer, 150 N.C. 699, 64 S.E. 897; West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477; Bruce v. Nicholson, 109 N.C. 202, 13 S.E. 790; Healey Ice Mach. Co. v. Green, C.C., 181 F. 890, opinion by Connor, J., formerly a member of this Court, affirmed 4 Cir., 191 F. 1004.

A laborers' and materialmen's lien arises out of the relationship of debtor and creditor, and it is for the debt that the lien is created by statute. Without a contract the lien does not exist. Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324, 326. In that case it is said: "Mere knowledge that work is being done or material furnished on one's property does not enable the person furnishing the labor or material to obtain a lien."

The debt to plaintiff was the debt of Charles B. Douglass alone. The plaintiff with knowledge that the property in this case was owned by Charles B. Douglass and wife, Olive J. Douglass, by the entireties contracted with Charles B. Douglass alone. It must abide by the written contract it made.

The judgment below is

Affirmed.