Powers v. Malach

Markell, J., delivered the opinion of the Court. This is an appeal by a wife from a judgment against husband and wife for electrical wiring done in two apartment houses on Winston Avenue and a house on Fair Oaks Avenue, which were build on land owned by husband and wife as tenants by the entireties. The case was tried before the court without a jury. Suit was brought, on the common count for work and materials, for the balance due of the contract price for the Winston Avenue work and for extra work over and above the Fair Oaks contract price.

The contracts were in the form of written estimates addressed by plaintiff to “Powers Construction Company”. The Winston Avenue contract was dated August 13, 1947 and was “Accepted by Powers Construction Company, Earl W. Powers.” The other contract was dated September 1, 1949 and seems to bear the initials “E. W. P.”. Four checks for part payments on the Winston Avenue contract were signed, three “Powers Construction Co., Earl W. Powers, Treas.”, one “Belvedere Realty Co., Earl W. Powers”. One check for part payment on the other contract was signed “Earl W. Powers”.

A check or checks for $950 paid on the first contract, and one for a payment on the second contract, are not in the record. ¹¹² Powers testified that for at least twenty years he had built on properties owned by him and his wife as tenants by the entireties, and in selling such properties his wife had joined in the deeds. Powers Construction Company .was a corporation, but its charter was forfeited on October 25, 1945. There is no evidence as to the relations, if any, between Mrs. Powers and the corporation before its charter was forfeited. Plaintiff testified that both contracts were accepted by Powers Construction Company, by Earl W. Powers; Mrs. Powers was present, not all the time, in Power’s office in one of the new buildings on Winston Avenue; plaintiff asked her for money; several times, in 1949 or 1950, she told him she would pay; he asked her for money in her own house; “Mrs. Powers knew Mr. Powers owed the money, and I asked her for it”; after the job was completed he asked Mr. and Mrs. Powers for payments ; they said they would pay him; Mrs. Powers was present when the Winston Avenue contract was signed; some checks for payment on account, Powers Construction Company checks, were signed by Mrs. Powers; either Mr. Powers or .Mrs. Powers gave plaintiff orders with respect to the work on each of these jobs.

The nature of any such orders does not appear. Powers and his wife denied that he had, or professed to have, authority to act as her agent or that she had anything to do with his business. The court asked Mrs. Powers, “* * * it never occurred to you to question your husband’s authority in dealing with any of the properties you owned jointly with him, did it?” She answered, “No.” In rendering its verdict the court said, “The testimony here indicates that Mr. and Mrs. Powers have made a