COWLEY, District Judge.
Plaintiff (appellant) brought this action to foreclose a mechanic’s lien for electrical equipment furnished and work done on property owned by defendant (respondent). From a judgment for defendant, plaintiff appeals.
Plaintiff furnished the electrical equipment and did the work at the instance and request of David J. Campbell, defendant’s husband, and sought to hold the defendant responsible and to have and foreclose a lien on her property on the theory that David J. Campbell was the agent of his wife.
The trial court found that plaintiff sold the material and did the work on the personal credit of David J. Campbell, and that he was not the duly authorized agent of his wife, and entered judgment for the defendant, no cause of action.
Our lien statute is Title 52, Utah Code Annotated, 1943, and it provides that a lien may attach to an owner’s interest in property for labor performed or materials furnished at the instance of an agent of the owner.
[456]*456The sole question involved by this appeal is whether the trial court erred in finding that David J. Campbell was not the duly authorized agent of his wife, Susan M. Campbell.
The answer to this question requires a close examination and analysis of the facts as presented by the record.
At the outset we point out that the defendant offered no testimony, but rested at the close of plaintiff’s case. The plaintiff was required to call Mrs. Campbell as their witness which may have put them to a disadvantage in attempting to establish an implied agency through her.
The facts are these: Defendant’s husband, David J. Campbell, contacted Mr. James W. Latimer, co-partner of plaintiff company, to install electric meters and do the wiring for several apartments in the property designated at 729 North Second West, Salt Lake City, Utah. The plaintiff did the electrical work on this property between February 14, 1946 and April 24, 1946. During this time Mr. Campbell was on the premises every day, was overseeing the job and was participating in other remodeling work. Mrs. Campbell was never on the premises, did not take any interest whatever in the property and only saw the property a few times from the outside. Plaintiff charged the account to David J. Campbell, and after the work was completed made demands on him for payment. Plaintiff did not make any demands on defendant for payment at any time. Mr. Latimer filed the lien for the plaintiff company on June 24, 1946 and at this time discovered for the first time that defendant owned the property.
Prior to the time this job was commenced plaintiff had done two other similar jobs on two different properties for Mr. Campbell, Mr. Latimer testified that the same arrangements were made with Mr. Campbell on this job as on the other two jobs. On this and the other two jobs all arrangements were made by Mr. Campbell and the accounts were [457]*457charged to him. He paid for the other two jobs, except for a few dollars which was still delinquent at the time of his death.
The property in this case was purchased by Mr. Campbell on November 24, 1945 or about three months before the electrical work was commenced by the plaintiff. Mr. Campbell made all of the negotiations and conducted the entire transaction in the purchase of the property but he caused the deed to be executed and recorded in his wife’s name. She testified that her husband caused the deed to be executed in her name because “his credit was not good.” Defendant further testified that the deed was placed in her name without her sanction and that she always protested to her husband whenever he caused properties to be placed in her name. She stated as her reason for such protest that “she didn’t want to get into trouble.” At the time the deed was executed and recorded in defendant’s name she signed a mortgage on the property. The importance of this fact will appear later. On April 1, 1946, about three weeks before the electrical work was completed, defendant and her husband signed a contract of sale to one Harold B. Brinton and wife. With this contract of sale was a “repair” agreement which they also signed by which they agreed to make certain repairs. The “repair” agreement did not include the electrical work for the reason that it was well advanced to completion. Defendant’s husband engaged in all the negotiations and made all the arrangements for this sale to Mr. Brinton, the same as he had done for the purchase of the property, a few months prior.
Later Mr. Campbell died and left no estate. Defendant was required to deed the property back to the original owner, subject to the contract of sale in Mr. Brinton, as she could not make the purchase price payments.
From these facts the trial court held, as stated above, that David J. Campbell was not the duly authorized agent of defendant, but found that plaintiff relied solely on the credit of defendant’s husband.
[458]*458We shall first resolve the question as to when defendant first discovered that she was the legal owner of the property for the importance this question may have in determining plaintiff’s history of implied agency.
Defendant was uncertain and her testimony confusing on this point. She claimed by some of her testimony that it was at the time she signed the contract of sale and “repair” agreement with her husband to Mr. Brinton on April 1, 1946. In other parts of her testimony she was not certain as to the time but thought it was at the time Mr. Campbell borrowed money from the Tracy-Collins Company. This testimony has reference to the time she signed the mortgage in November, 1945. This latter testimony is the more convincing and therefore we believe the preponderance of the evidence would support a finding that she knew that she was the owner of the property prior to the commencement of the electrical work. Had defendant not discovered that she owned the property until April 1, 1946 when she and her husband executed a contract of sale of the property in favor of Mr. Brinton, the plaintiff undoubtedly would have had to have relied upon a ratification of her husband’s contract with plaintiff, or relied on a new contract between plaintiff and defendant, or sued in quasi-contract. These theories were not plead and are not involved in this case, and properly so under the testimony as it was developed at the trial.
For a reversal plaintiff relies on the Oklahoma case of Caldwell v. Overall, 1940, 186 Okl. 615, 99 P. 2d 496. In this case the lien was foreclosed against the wife’s property for work which was contracted for by her husband on the grounds that he was her duly authorized agent. This case, however, is unsatisfactory to a determination of our problem for the reason that the court failed to detail the facts from which it drew its conclusion. The Oklahoma court merely said:
“Without going into detail, it is sufficient to say that the facts and circumstances shown, as well as the admissions of the defendant, lead [459]*459to the conclusion that the work was done for her, and that she knew that plaintiff had been employed for such purpose by the husband, and accepted his services with such knowledge.”
We must assume that “the facts and circumstances” in this case, as well as. the “admissions” of the defendant justified the conclusion reached by the court. With this assumption we agree with the decision of the Oklahoma court.
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COWLEY, District Judge.
Plaintiff (appellant) brought this action to foreclose a mechanic’s lien for electrical equipment furnished and work done on property owned by defendant (respondent). From a judgment for defendant, plaintiff appeals.
Plaintiff furnished the electrical equipment and did the work at the instance and request of David J. Campbell, defendant’s husband, and sought to hold the defendant responsible and to have and foreclose a lien on her property on the theory that David J. Campbell was the agent of his wife.
The trial court found that plaintiff sold the material and did the work on the personal credit of David J. Campbell, and that he was not the duly authorized agent of his wife, and entered judgment for the defendant, no cause of action.
Our lien statute is Title 52, Utah Code Annotated, 1943, and it provides that a lien may attach to an owner’s interest in property for labor performed or materials furnished at the instance of an agent of the owner.
[456]*456The sole question involved by this appeal is whether the trial court erred in finding that David J. Campbell was not the duly authorized agent of his wife, Susan M. Campbell.
The answer to this question requires a close examination and analysis of the facts as presented by the record.
At the outset we point out that the defendant offered no testimony, but rested at the close of plaintiff’s case. The plaintiff was required to call Mrs. Campbell as their witness which may have put them to a disadvantage in attempting to establish an implied agency through her.
The facts are these: Defendant’s husband, David J. Campbell, contacted Mr. James W. Latimer, co-partner of plaintiff company, to install electric meters and do the wiring for several apartments in the property designated at 729 North Second West, Salt Lake City, Utah. The plaintiff did the electrical work on this property between February 14, 1946 and April 24, 1946. During this time Mr. Campbell was on the premises every day, was overseeing the job and was participating in other remodeling work. Mrs. Campbell was never on the premises, did not take any interest whatever in the property and only saw the property a few times from the outside. Plaintiff charged the account to David J. Campbell, and after the work was completed made demands on him for payment. Plaintiff did not make any demands on defendant for payment at any time. Mr. Latimer filed the lien for the plaintiff company on June 24, 1946 and at this time discovered for the first time that defendant owned the property.
Prior to the time this job was commenced plaintiff had done two other similar jobs on two different properties for Mr. Campbell, Mr. Latimer testified that the same arrangements were made with Mr. Campbell on this job as on the other two jobs. On this and the other two jobs all arrangements were made by Mr. Campbell and the accounts were [457]*457charged to him. He paid for the other two jobs, except for a few dollars which was still delinquent at the time of his death.
The property in this case was purchased by Mr. Campbell on November 24, 1945 or about three months before the electrical work was commenced by the plaintiff. Mr. Campbell made all of the negotiations and conducted the entire transaction in the purchase of the property but he caused the deed to be executed and recorded in his wife’s name. She testified that her husband caused the deed to be executed in her name because “his credit was not good.” Defendant further testified that the deed was placed in her name without her sanction and that she always protested to her husband whenever he caused properties to be placed in her name. She stated as her reason for such protest that “she didn’t want to get into trouble.” At the time the deed was executed and recorded in defendant’s name she signed a mortgage on the property. The importance of this fact will appear later. On April 1, 1946, about three weeks before the electrical work was completed, defendant and her husband signed a contract of sale to one Harold B. Brinton and wife. With this contract of sale was a “repair” agreement which they also signed by which they agreed to make certain repairs. The “repair” agreement did not include the electrical work for the reason that it was well advanced to completion. Defendant’s husband engaged in all the negotiations and made all the arrangements for this sale to Mr. Brinton, the same as he had done for the purchase of the property, a few months prior.
Later Mr. Campbell died and left no estate. Defendant was required to deed the property back to the original owner, subject to the contract of sale in Mr. Brinton, as she could not make the purchase price payments.
From these facts the trial court held, as stated above, that David J. Campbell was not the duly authorized agent of defendant, but found that plaintiff relied solely on the credit of defendant’s husband.
[458]*458We shall first resolve the question as to when defendant first discovered that she was the legal owner of the property for the importance this question may have in determining plaintiff’s history of implied agency.
Defendant was uncertain and her testimony confusing on this point. She claimed by some of her testimony that it was at the time she signed the contract of sale and “repair” agreement with her husband to Mr. Brinton on April 1, 1946. In other parts of her testimony she was not certain as to the time but thought it was at the time Mr. Campbell borrowed money from the Tracy-Collins Company. This testimony has reference to the time she signed the mortgage in November, 1945. This latter testimony is the more convincing and therefore we believe the preponderance of the evidence would support a finding that she knew that she was the owner of the property prior to the commencement of the electrical work. Had defendant not discovered that she owned the property until April 1, 1946 when she and her husband executed a contract of sale of the property in favor of Mr. Brinton, the plaintiff undoubtedly would have had to have relied upon a ratification of her husband’s contract with plaintiff, or relied on a new contract between plaintiff and defendant, or sued in quasi-contract. These theories were not plead and are not involved in this case, and properly so under the testimony as it was developed at the trial.
For a reversal plaintiff relies on the Oklahoma case of Caldwell v. Overall, 1940, 186 Okl. 615, 99 P. 2d 496. In this case the lien was foreclosed against the wife’s property for work which was contracted for by her husband on the grounds that he was her duly authorized agent. This case, however, is unsatisfactory to a determination of our problem for the reason that the court failed to detail the facts from which it drew its conclusion. The Oklahoma court merely said:
“Without going into detail, it is sufficient to say that the facts and circumstances shown, as well as the admissions of the defendant, lead [459]*459to the conclusion that the work was done for her, and that she knew that plaintiff had been employed for such purpose by the husband, and accepted his services with such knowledge.”
We must assume that “the facts and circumstances” in this case, as well as. the “admissions” of the defendant justified the conclusion reached by the court. With this assumption we agree with the decision of the Oklahoma court.
We also agree with the law as stated in the Caldwell case and will quote it for its applicability in analyzing the facts of the case at bar:
“While the husband’s authority to act for his wife is not implied from the marital relation, nor from the mere fact that he occupied, or managed and controlled, his wife’s property, yet in many instances the agency of the husband is inferred from the circumstances, as when the wife knew that the lien claimant was working on the building, and personally gave him directions as to parts of the work, when she participated in conversations between the contractors and her husband relative to the work while it was being done, or when she furnished what money was paid on some material and the building of the house.” 18 R. C. L. 901; 40 C. J. p. 99, Sec. 87; 57 C. J. S., Mechanics’ Liens, § 63.
We agree with this text statement of the law that some fact or circumstance is required in addition to the marital relation and management of the wife’s property by the husband before an agency of the husband will be inferred. We do not contend however that the illustrations given in the text statement “as other circumstances from which an agency of the husband will be implied” are all inclusive.
We have found that defendant knew that she was the legal owner of the property in question at the commencement of and during the time the work was in progress. In our analysis of the facts we shall first separate those facts which are most favorable to a finding of implied agency. They are (1) that the marital relation existed between defendant and David J. Campbell; (2) that defendant knew she owned the property; (3) that [460]*460David J. Campbell managed and controlled his wife’s property, and (4) that defendant did not protest the doing of the work- or her liability to either her husband or the plaintiff. Under the law as quoted above and approved by us the combination of the first three facts are not enough to infer an agency, but some additional fact or circumstance must be found. Plaintiff contends that defendant’s “failure to protest” under subdivision (4), is the additional fact or circumstance that would justify a finding of agency. On this point see the Utah case of Morrison, Merrill & Company, Respondents, v. Clark, Appellant, 1899, 20 Utah 432, 59 P. 235, 77 Am. St. Rep. 924. In the Clark case the lien claimant failed because the wife (Mrs. Clark) protested to her husband the construction of a house on her separate property and for other reasons which we deem unnecessary to discuss. A wife’s “failure to protest” under subdivision (4) could be a strong determining circumstance in a proper case to infer an agency, as for example, if the work is done “for her” as stated in the Caldwell case or the converse of what this court said in the Clark case “on her behalf.” In the case at bar there is not a scintilla of evidence to show that the work was done either “for” or “on behalf” of defendant. To the contrary the record shows that the work was performed for Mr. Campbell and his benefit. Our reasons briefly stated in reaching this conclusion are that defendant held the mere legal title to the property and was not the true owner. This is borne out by the fact that Mr. Campbell caused the title to be placed in his wife’s name without her sanction and over her protest, and by the further fact that she took no interest in the property whatever. On the other hand, the record reveals that Mr. Campbell treated the property in every respect as his own property. This is evidenced by the fact that he purchased the property, remodeled it into apartments, entered into the contract with plaintiff for the electrical work in his name, resold the property to Mr. Brinton, and did everything in respect to the property that he desired to do without consulting his wife. When defendant signed the purchase price [461]*461mortgage in November, 1945 and signed the contract of sale to Mr. Brinton on April 1, 1946, she did so at the request and by the directions of Mr. Campbell. This is ample proof that Mr. Campbell was the true owner of the property and that the work was done for his benefit and not defendant’s.
Under all the facts and circumstances of this case it cannot be said that David J. Campbell was the agent of his wife. Mr. Campbell was in fact the principal acting on his own behalf.
Judgment affirmed. Costs to respondent.
PRATT, C. J., concurs.
LATIMER, J., having disqualified himself, does not participate.