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strained and unlimited power of words 'or damaged, in addition to Parliament to take or damage pri- the word 'taken,' indicates a vate property at will without com- deliberate purpose not to confine a pensation, whereas in this country recovery to cases where there is a our legislatures are under constitu- physical invasion of the property aftional restraints in respect to indi- fected, but to make the test of liavidual rights of property. Hence it bility the fact that private property has been held that, although a nui

has been 'damaged' for public use,

without regard to the means by sance may be legalized, and there

which the injury was effected." fore protected from indictment and

We conclude that the city in estabagainst interference with it as a

lishing and maintaining the hospital public nuisance, the one maintain

in question, although exercising a ing it may nevertheless be liable in

lawful governmental function, and damages to an individual for any having statutory authority, did not damages he may sustain there

have warrant to exfrom."


ercise this function authorityIn the case of Muskogee v. Han- in violation of the effect. cock, — Okla. —, L.R.A.1916F, 897, constitutional guaranty to the citi158 Pac. 622, in an opinion by Jus- zen that private property should not tice Sharp, it was held a recovery be damaged without just compensamay be had under $ 24, art. 2, of the tion. Constitution, in all cases where pri- The judgment of the lower court vate property is damaged in mak- is affirmed. ing improvement that is public in its

All the Justices concur. nature. The improvement in that case was a city sewer. It was said Petition for rehearing denied, in the syllabus: “The use of the March 25, 1919.



Depreciation of property by the erection of a hospital by a municipality as

a "taking" or "damaging" within the constitutional provision.

A general discussion of a pesthouse lic use without just compensation, with. or contagious disease hospital as a nui- in the meaning of this constitutional sance appears in the note to Birchard v. provision. The theory of the court is Board of Health, ante, 995. The pres- well summed up in a quotation from ent note is confined to the distinctive Rigney v. Chicago (1881) 102 III. 64, question indicated in the title hereto. to the effect that “there are certain in

There is a difference of opinion as to juries which are necessarily incident to whether the general depreciation of the ownership of property in towns or property in the neighborhood of a hos- cities, which directly impair the value pital is an injury for which a munici- of private property, for which the law pality establishing the hospital is lia- does not and never has afforded any reble, under a constitutional prohibition lief. For instance, the building of a against taking or damaging property jail, police station, or the like will genwithout compensation. It is the view erally cause a direct depreciation in the of the Illinois court in Frazer v. Chi- value of neighboring property, yet that cago (1900) 186 Ill. 480, 51 L.R.A. is clearly a case of damnum absque 306, 78 Am. St. Rep. 296, 57 N. E. injuria." And in conclusion it is 1055, that the depreciation of the value stated: “We can see no difference, in of real property, caused by the estab- principle, between the right of a city lishment of a smallpox hospital in the to establish and maintain a smallpox neighborhood under statutory author- hospital, and to erect and use jails, fireity, does not constitute a taking or engine houses, calabooses, and the like. damaging of private property for pub- Greater care might be required in the maintenance of one than the other, and premises, as by subjecting them to condifferent considerations would undoubt- tagious or other infectious diseases, it edly enter into the selection of a site is not only a nuisance, but it is such an of a pesthouse than of a fire-engine invasion of the property rights of such house or jail; but the city would be

adjacent holder as amounts both to an liable only for an abuse of authority,

injuring and a taking of property, unor an unwarranted exercise of discre

der the section, supra, of our state Contion in locating or maintaining the

stitution. For this the city must make same, having reference to the present

compensation." necessities, the crowded condition of

The wording of the the locality in which they are placed or

constitutional provision differs slightmaintained, and other pertinent facts

ly from that of Illinois, but in suband circumstances."

stance is the same. The Kentucky ConOn the contrary, the courts of Ken

stitution provides that “municipal and tucky and Oklahoma hold that compen

other corporations, and individuals insation must be made for such deprecia

vested with the privilege of taking prition under such a constitutional provi- vate property for public use, shall make sion.

just compensation for property taken, In Paducah v. Allen (1901) 111 Ky. injured or destroyed by them.' 361, 98 Am. St. Rep. 422, 63 S. W. 981, See the reported case (OKLAHOMA the city established a contagious-dis- CITY V. VETTER, ante, 1009). ease hospital principally for the treat- And see Anable v. Montgomery Counment of smallpox patients, about 3 ty (1904) 34 Ind. App. 72, 107 Am. St. miles from its corporate limits. In Rep. 173, 71 N. E. 272. holding the city liable for the depre- As indicated in the title, this note ciation in the value of surrounding has been confined to cases in which liaproperty, the court states: “We, there- bility is sought to be imposed upon the fore, conclude that, where a city or municipality by virtue of the constituother municipality erects and maintains tional prohibition against taking or a public institution which, by reason damaging property without compensaof its nature, endangers the lives or tion; it does not discuss the liability health of the occupants of adjacent based upon other grounds. W. A. E.

MRS. MILDRED BANKS, Individually and as Guardian, Doing Business

as Banks & Company, Appt.,

G. H. PULLEN and Wife.

Mississippi Supreme Court (Division B) March 19, 1917.

(113 Miss. 632, 74 So. 424.)

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Husband and wife - husband as wife's agent charge on building.

Where a man undertakes to construct a building on his wife's land with money furnished by her, he is using means furnished by her to carry on business in his own name, within the meaning of a statute making him her agent, under such circumstances, as to all persons dealing with him without notice, and the wife is, therefore, liable for materials furnished him for the building, although she has paid him therefor, and her property may be sold to satisfy the claim.

[See note on this question beginning on page 1025.]

APPEAL by plaintiff from a judgment of the Circuit Court for De Soto County (Dinkins, J.) in favor of the defendant wife in a suit to enforce a materialman's lien on certain property, the legal title to which was in said defendant. Reversed.

The facts are stated in the opinion of the court.

Messrs. Holmes & Logan, for appel- Messrs. Mayes & Mayes, for appellant:

lees: The alleged contract between de- Plaintiff has not shown itself entitled fendants Pullen was and is fraudulent, to this lien, because it has not shown because, by entering into it under the that the house was erected at the interms mentioned therein, which was a stance of Mr. Pullen. secret contract, it would be impossible Smith v. Frank Gardner Hardware for any laborer or materialman to avail Co. 83 Miss. 654, 36 So. 9; Herrin v. himself of the “lien of mechanics and Warren, 61 Miss. 509. materialmen,” under the laws of the

The right given the legislature to state of Mississippi.

regulate contracts between husband Bates Mach. Co. v. Trenton & N.

and wife does not empower the legisB. R. Co. 70 N. J. L. 684, 103 Am. St.

lature to absolutely prohibit the wife Rep. 811, 58 Atl. 935; 27 Cyc. 299, 301; Picard v. Shantz, 70 Miss. 381, 12

from making any particular kind of

contract with her husband, if, under So. 544. The alleged contract between defend

our law, any man could have made that ant and his wife is void under § 2521,

same kind of contract. Code of 1906, because it is a contract

Andrews v. State, 3 Heisk. 165, 8 for "work and labor" to do a specific

Am. Rep. 8; State v. Clarke, 54 Mo. 17, thing for a specific sum of money, and

14 Am. Rep. 471; Ex parte Patterson, said money is to be paid in advance. 42 Tex. Crim. Rep. 256, 51 L.R.A. 654,

4 Elliott, Contr. § 3667; Wooten v. 58 S. W. 1011. Read, 2 Smedes & M. 585; Flynn v. Section 2522 does not have the effect Dougherty, 91 Cal. 669, 14 L.R.A. 230, of avoiding the contract between de27 Pac. 1080; Phipps v. McFarlane, 3 fendants Pullen. Minn. 109, Gil. 61, 74 Am. Dec. 743;

Kennington v. Hemingway, 101 Miss. Courtright v. Stewart, 19 Barb. 455;

259, 39 L.R.A. (N.S.) 541, 57 So. 809, Re Gies, 160 Mich. 502, 30 L.R.A.

Ann. Cas. 1914B, 392. (N.S.) 318, 125 N. W. 420, 19 Ann. Cas. 1288; Bond v. Bourk, 54 Colo. 51,

Cook, P. J., delivered the opinion 43 L.R.A.(N.S.) 97, 129 Pac. 223, Ann. of the court: Cas. 1914C, 581; Davis v. Blanchard, Upon motion of appellees, the 138 N. Y. Supp. 202.

stenographer's notes of the evidence Messrs. Mayes, Wells, May, & San- taken at the trial of this suit were, ders, also for appellant:

by order of this court, stricken from The contract between defendants was

the record. Afterwards appellees void.

filed a motion asking an affirmance Planters' Lumber Co. v. Tompkins,

of the judgment of the trial court, 111 Miss. 307, 71 So. 565; 9 Cyc. 475;

which motion was overruled. The Bowdre v. Carter, 64 Miss. 221, 1. So. 162; Arnold v. Elkins, 67 Miss. 675, 7

case is, therefore, presented to this So. 251; Black v. Robinson, 62 Miss. court upon the pleadings alone. 68; Watkins v. Duvall, 69 Miss. 364,

The appellant furnished G. H. 13 So. 727; Montgomery v. Scott, 61

Pullen, the husband of Mrs. F. M. Miss. 409; Cotten V. McKenzie, 57 Pullen, certain building material for Miss. 419.

the purpose of building a dwelling The house was subject to the lien house upon land belonging to Mrs. of the materialman.

Pullen; the house was built by Mr. Planters' Lumber Co. v. Tompkins, Pullen, and the material furnished supra; Fairbanks Co. v. Briley, - Miss. by appellant was used in the con25 So. 354; Flake v. Central Hard

struction of the house. The house ware Co. 96 Miss. 838, 51 So. 461; Schiaffino v. Christ, 96 Miss. 801, 51

was the dwelling house of Mrs. PulSo. 546; Flake v. Central Hardware

len and her husband, and was used Co. 96 Miss. 838, 51 So. 461.

as such. Mrs. Pullen, the owner of

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(113 Mi88. 632, 74 80. 424.) the land, together with her husband, equal

equal certainty that money and was made a party to this suit, and

means are one and the same thing the petition asked that a judgment in the statutory sense? Besides, he be rendered against G. H. Pullen for had charge of her land and erected material furnished and used in said

the house thereon, ostensibly acting building, and that said judgment be for her in the transaction of her declared a lien on the house, and that

business. The statute was designed the house be sold to satisfy the judg- to protect the public. Secret conment.

tracts between husband and wife are Mrs. Pullen, the owner of the

condemned for obvious reasons. premises, defended upon the theory that she did not make the contract

We see in this case a husband buildfor the material; that she made a

ing a house on the land of his wife, contract with her husband to fur

and entering into a contract wherenish the material and build the house

by he was to receive the means of at a stipulated price, which was paid

the wife for the purpose of securing in advance. In other words, Mrs.

the material with which to erect the Pullen, by her answer to the peti- house. The husband did not use the tion, denied liability, because she means to buy the material; he did not have any contract with ap- bought it from appellant on credit. pellant; knew nothing about the Who must suffer? The husband is dealings between her husband and made the statutory agent of his wife appellant; that she made a contract whenever he uses any of her means with her husband that he furnish the to carry on a business in his own material and build her a house; and

name, "as to all persons dealing with that she had paid her husband for him without notice, unless the conthe work and material.

tract between husband and wife, We think a correct solution of this

which changes this relation, be eviproblem presented by this record

denced by writing, subscribed by may be reached by the application them, duly acknowledged,” etc. of our statutes relating to the busi

So we think when Mr. Pullen went ness relation of the husband to the into the business of contracting, wife, to the facts of the case.

financed by his wife, he was her In the first place, § 2521, Code

agent, there being no pretense that 1906, makes the contract between

the contract between him and his Mrs. Pullen and her husband for

wife, changing this relation, was compensation for work and labor

ever made in accordance with the a nullity. It seems that Mr. Pullen statute, or that appellant had any is a mechanic, and the contract notice of the contract. He was not contemplated that he would perform only her agent, but his contracts the labor necessary to the construc

made in furtherance of his contract tion of the building, and, according were, in law, the contracts of his to the pleadings, he did do the work. wife, and the payGoing a step further, it appears

ment of the contract Husband and that Mr. Pullen was carrying on the price to him does ar wife's agentbusiness of a contractor, and, as not, in any way, ex- building. such, made a contract with his wife tinguish the obligato do the work and to furnish the tions of his wife to pay the account material necessary to the comple- made by him for materials. tion of the job. Was he using the This being our view of the law of “means” of his wife “to operate this case, we will not discuss the and carry on business in his own very interesting brief of counsel for name?” The wife furnished the appellee referring to the lien of the money to enable him to perform the materialman. Mr. Pullen was the contract, so she avers. It was her agent of the owner, authorized to money, and may we not say with buy the material, and Mrs Pullen is bound to pay the bill; and her prop- performed or materials furnished unerty may be sold to satisfy the claim. der a contract made with her husband" Reversed and remanded.


charge on

is treated in the annotation beginning at page 1025, post. The bearing and

effect upon that question of statutes NOTE.

like that involved in the reported case

(BANKS V. PULLEN, ante, 1013), which The general subject of the "enforce- deal specifically with the husband's ability of a mechanic's lien against the agency for the wife, are discussed at property of a married woman for work pp. 1058 et seq.

M. L. WILSON, Appt.,


Alabama Supreme Court - November 4, 1915.

(195 Ala. 477, 70 So. 140.)

Mechanics' lien - contract by husband — liability of wife's property.

1. To charge a wife's property with a mechanics' lien for materials purchased by her husband, he must assume to contract for her, and the contract be subsequently ratified by her with full notice or knowledge of its nature.

[See note on this question beginning on page 1025.] - ratification of purchase.

causing changes of plans for the re2. Ratification by a woman of her pairs and being constantly present at husband's contract for materials for the building during the progress of the her building, so as to charge it with work. & mechanics' lien, is not shown by her [See 18 R. C. L. 902.]

APPEAL by defendant from a decree of the Chancery Court for Covington County (Chapman, Ch.), in favor of plaintiff in a suit for the establishment and enforcement of a materialman's lien on certain property. Reversed.

The bill alleged the furnishing of the materials for a certain building under contract with defendant or her agent, setting out the balance due, and describing the land sought to be subjected. Afterwards the bill was amended to show that the contract was made with the authorized agent of defendant.

Further facts appear in the opinion of the court.
Mr. W. L. Parks for appellant.

According to the evidence the maMessrs. Jones & Powell for appellee. terials were furnished to, and solely McClellan, J., delivered the opin

on the credit of, the husband of the ion of the court:

appellant, who owned the lot thereThis bill was filed by the appellee with improved. The contract for against the appellant to have estab

the materials was made with the lished and enforced a materialman's husband alone. The law governing lien on property improved with the the rights of the parties concerned material furnished. Code, § 4754.

is thus well stated in Wadsworth v. The decree awarded the relief Hodge, 88 Ala. 500, 506, 7 So. 196: sought.

“The contract must be either orig

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