Cain, C.
L. M. Thomas & Son, plaintiff, brought this suit against Lavina George and E. T» George, her husband, to foreclose a mechanic’s lien for hardware furnished in the erection of a dwelling-house on lot 1, in block 99, óf University Place, Nebraska, owned by the defendant Lavina George. The defendant Horsch Lumber & Coal Company filed a cross-petition against the defendants George, seeking to foreclose a mechanic’s lien for $701.12 for lumber and material furnished in the erection of the same building. The defendant William Seng sought judgment against the defendants George for a balance due for the construction of the dwelling-house. The district court by its decree dismissed the plaintiff’s suit, and rendered a money judgment against the defendants George for $393.75 in favor of the defendant William’ Séng, and dismissed the 'cross-petition of the [46]*46defendant Horsch. Lumber & Coal Company. The Horsch Lumber & Coal Company appeals from the decree dismissing its cross-petition, and is the sole appellant. Lavina and E. T. George are the appellees.
Appellant’s assignments of error are that the court erred in denying the foreclosure of its lien, and in refusing to render a personal judgment against the defendant E. T. George, and in holding that the Georges were not the original contractors for the material furnished, and that Lavina George had not authorized E. T. George to purchase the material and bind her property for the payment thereof.
We are agreed with counsel for both parties that there are but two questions in this case, as follows: (1) Is the Horsch Lumber & Coal Company, appellant, entitled to establish a lien against the property of the defendant Lavina George? (2) Is the Horsch Lumber & Coal Company entitled to a personal judgment against the defendant E. T. George?
As before stated, this is a suit by which appellant seeks to establish and foreclose a mechanic’s lien for lumber and material furnished by it in the erection of a dwelling-house on the lot described owned by the defendant, Lavina George. It is undisputed that she owned the lot and is the wife of the defendant E. T. George. It is settled law in this state that a mechanic’s lien is purely statutory and must be based upon contract, express or implied. Rev. St. 1918, sec. 3823; Bradford v. Higgins, 31 Neb. 192; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80; Occidental Building & Loan Ass’n v. McGrew, 86 Neb. 694. It is equally well settled that a mechanic’s lien cannot be created upon the land of a married woman for work done or material furnished in improving such land under a contract with her husband, where the husband acts merely for himself, and that whether the husband was' the agent of the wife in the matter is a question of fact and will not be presumed from the marital relation alone, and that the failure of [47]*47the wife to dissent or her joint occupancy of the premises with her husband dqps not establish such agency. Rust-Owen Lumber Co. v. Holt, supra.
With these propositions of law in mind, we will consider the evidence on this point. The record discloses that Mrs. George herself never had any business relations with the appellant. If, then, she was bound by any contract with appellant, it must have been through the agency of another or from such facts and circumstances known to her as would imply an agreement. On the question of agency, the only evidence is that of Mrs. George herself, who was called as a witness by appellant, thereby placing her credibility beyond impeachment. She testified in the most explicit terms that she never ordered any of the material in question, did not talk to her husband about it, had nothing to do with any negotiations for it, that she had nothing at all to do with it and knew nothing about it, that no one did anything for her in the matter, and that she authorized no one to do anything for her in the premises’. Her testimony excludes any idea of agency. Appellant seeks to escape the consequences of this testimony by urging the following: (a) That, in the original answer of the Georges, it was admitted that they agreed to purchase from appellant the bill of lumber in controversy, (b) That Mrs. George admitted in her testimony that her husband was “acting for both of us.” (c) That, in testifying to his agreement with appellant to take the material in question, her husband constantly used the plural personal pronoun “we,” meaning thereby himself and wife, (d) That the trial court found that both husband and wife had jointly contracted with Seng for the same material, (e) That Mrs. George paid for part of the material and thereby ratified the contract her husband had made with appellant.
As to the first of these points, it appears that the original answer in this case was verified by the husband alone, and the wife knew nothing about it; that the [48]*48admission contained in it is on behalf of the husband alone; and that later the wife filed an amended answer containing a general denial. In view of these facts, it cannot be said that Mrs. George made the admission claimed. The second point is equally unsound, since it is clear from her testimony that, when she used the plural personal pronoun, it had reference-to the general idea of building a house, and had no reference whatever to any contract with appellant. Her husband explained how he chanced to use the word “we” in his testimony by saying that it was a habit of his and he referred to the family, and that in dealing with appellant he acted for himself. In any event nothing he could say about it would bind his wife without her knowledge. The finding of the trial court upon Seng’s cross-petition can have no possible relevancy here, because it may have been a default or acquiescence. The only evidence that Mrs. Georjge páid anything is that she paid $40 upon an order of Seng, the contractor’. Far from being a recognition of any contract with appellant, this is a recognition of a contract with Seng. There is no merit in any of these propositions, and they do not in the least detract from the probative force and effect of the testimony of Mrs. George. There was no evidence that Mrs. George knew where any of the material came from. We therefore must hold that neither by agency nor by implication of law was there any contract between Mrs. George and appellant. It follows, of course, • that appellant has no claim whatever against her or any lien on her property.
There is a further phase of this case, consideration of which not only will confirm the foregoing conclusion, but incidentally will dispose of appellant’s claim to a- personal judgment against E. T. George. Appellees, while admitting that Mr. George verbally agreed to purchase from the appellant the lumber and material used in the construction of the building, contend that, before delivery of any material or payment of any 'money, the [49]*49agreement was canceled by substituting William Seng, the contractor, in tlie place of Mr. George as purchaser, and that thereby a new contract was made and Mr. George released from the old one. Decision of this question depends upon the facts, which will be briefly stated. In the spring of 1917, E. T. George and his brother, J. D. George, were both contemplating building residences in University Place, and J. D- George bad obtained a proposition from appellant to furnish him a bill of lumber at the price of $1,3Q0. E. T. George, defendant, told his brother to ask appellant if it would duplicate the bill for him at the same price, and the brother did so, and appellant replied in the affirmative. Thereupon, E. T.
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Cain, C.
L. M. Thomas & Son, plaintiff, brought this suit against Lavina George and E. T» George, her husband, to foreclose a mechanic’s lien for hardware furnished in the erection of a dwelling-house on lot 1, in block 99, óf University Place, Nebraska, owned by the defendant Lavina George. The defendant Horsch Lumber & Coal Company filed a cross-petition against the defendants George, seeking to foreclose a mechanic’s lien for $701.12 for lumber and material furnished in the erection of the same building. The defendant William Seng sought judgment against the defendants George for a balance due for the construction of the dwelling-house. The district court by its decree dismissed the plaintiff’s suit, and rendered a money judgment against the defendants George for $393.75 in favor of the defendant William’ Séng, and dismissed the 'cross-petition of the [46]*46defendant Horsch. Lumber & Coal Company. The Horsch Lumber & Coal Company appeals from the decree dismissing its cross-petition, and is the sole appellant. Lavina and E. T. George are the appellees.
Appellant’s assignments of error are that the court erred in denying the foreclosure of its lien, and in refusing to render a personal judgment against the defendant E. T. George, and in holding that the Georges were not the original contractors for the material furnished, and that Lavina George had not authorized E. T. George to purchase the material and bind her property for the payment thereof.
We are agreed with counsel for both parties that there are but two questions in this case, as follows: (1) Is the Horsch Lumber & Coal Company, appellant, entitled to establish a lien against the property of the defendant Lavina George? (2) Is the Horsch Lumber & Coal Company entitled to a personal judgment against the defendant E. T. George?
As before stated, this is a suit by which appellant seeks to establish and foreclose a mechanic’s lien for lumber and material furnished by it in the erection of a dwelling-house on the lot described owned by the defendant, Lavina George. It is undisputed that she owned the lot and is the wife of the defendant E. T. George. It is settled law in this state that a mechanic’s lien is purely statutory and must be based upon contract, express or implied. Rev. St. 1918, sec. 3823; Bradford v. Higgins, 31 Neb. 192; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80; Occidental Building & Loan Ass’n v. McGrew, 86 Neb. 694. It is equally well settled that a mechanic’s lien cannot be created upon the land of a married woman for work done or material furnished in improving such land under a contract with her husband, where the husband acts merely for himself, and that whether the husband was' the agent of the wife in the matter is a question of fact and will not be presumed from the marital relation alone, and that the failure of [47]*47the wife to dissent or her joint occupancy of the premises with her husband dqps not establish such agency. Rust-Owen Lumber Co. v. Holt, supra.
With these propositions of law in mind, we will consider the evidence on this point. The record discloses that Mrs. George herself never had any business relations with the appellant. If, then, she was bound by any contract with appellant, it must have been through the agency of another or from such facts and circumstances known to her as would imply an agreement. On the question of agency, the only evidence is that of Mrs. George herself, who was called as a witness by appellant, thereby placing her credibility beyond impeachment. She testified in the most explicit terms that she never ordered any of the material in question, did not talk to her husband about it, had nothing to do with any negotiations for it, that she had nothing at all to do with it and knew nothing about it, that no one did anything for her in the matter, and that she authorized no one to do anything for her in the premises’. Her testimony excludes any idea of agency. Appellant seeks to escape the consequences of this testimony by urging the following: (a) That, in the original answer of the Georges, it was admitted that they agreed to purchase from appellant the bill of lumber in controversy, (b) That Mrs. George admitted in her testimony that her husband was “acting for both of us.” (c) That, in testifying to his agreement with appellant to take the material in question, her husband constantly used the plural personal pronoun “we,” meaning thereby himself and wife, (d) That the trial court found that both husband and wife had jointly contracted with Seng for the same material, (e) That Mrs. George paid for part of the material and thereby ratified the contract her husband had made with appellant.
As to the first of these points, it appears that the original answer in this case was verified by the husband alone, and the wife knew nothing about it; that the [48]*48admission contained in it is on behalf of the husband alone; and that later the wife filed an amended answer containing a general denial. In view of these facts, it cannot be said that Mrs. George made the admission claimed. The second point is equally unsound, since it is clear from her testimony that, when she used the plural personal pronoun, it had reference-to the general idea of building a house, and had no reference whatever to any contract with appellant. Her husband explained how he chanced to use the word “we” in his testimony by saying that it was a habit of his and he referred to the family, and that in dealing with appellant he acted for himself. In any event nothing he could say about it would bind his wife without her knowledge. The finding of the trial court upon Seng’s cross-petition can have no possible relevancy here, because it may have been a default or acquiescence. The only evidence that Mrs. Georjge páid anything is that she paid $40 upon an order of Seng, the contractor’. Far from being a recognition of any contract with appellant, this is a recognition of a contract with Seng. There is no merit in any of these propositions, and they do not in the least detract from the probative force and effect of the testimony of Mrs. George. There was no evidence that Mrs. George knew where any of the material came from. We therefore must hold that neither by agency nor by implication of law was there any contract between Mrs. George and appellant. It follows, of course, • that appellant has no claim whatever against her or any lien on her property.
There is a further phase of this case, consideration of which not only will confirm the foregoing conclusion, but incidentally will dispose of appellant’s claim to a- personal judgment against E. T. George. Appellees, while admitting that Mr. George verbally agreed to purchase from the appellant the lumber and material used in the construction of the building, contend that, before delivery of any material or payment of any 'money, the [49]*49agreement was canceled by substituting William Seng, the contractor, in tlie place of Mr. George as purchaser, and that thereby a new contract was made and Mr. George released from the old one. Decision of this question depends upon the facts, which will be briefly stated. In the spring of 1917, E. T. George and his brother, J. D. George, were both contemplating building residences in University Place, and J. D- George bad obtained a proposition from appellant to furnish him a bill of lumber at the price of $1,3Q0. E. T. George, defendant, told his brother to ask appellant if it would duplicate the bill for him at the same price, and the brother did so, and appellant replied in the affirmative. Thereupon, E. T. George authorized his brother to tell the appellant that he would take the bill of lumber for the price named and appellant was so informed. Mr. N. W. Kallemyn was the manager and agent of appellant throughout. No part of the lumber or material was delivered, no payment was made, and no written memorandum made. The statute of frauds was not pleaded, but the sufficiency of the evidence is before us. A few days later Mr. George entered into a written contract with the defendant William Seng which provided that Seng, who was a contractor, should build the house and furnish all lumber and máterial for $2,925 plus some extras not necessary to be noticed. A little later, and' about June 15, 1917, E. T. George and J. D. George visited the office of appellant, and E. T. told Mr. Kallemyn, the manager, that the bill of lumber he had agreed to take had been taken by Mr. Seng at the terms previously agreed upon, and that Mr. Seng had contracted to build the house. This testimony is corroborated by J. D. George, and even by Mr. Kallemyn himself, who testified on cross-examination as follows: “Q. And they told you in substance — I am not trying to use tlie exact words — that Mr. Seng would use this bill of lumber and order it out just as he would use it in the [50]*50lxouse, and that in that way the bill you and Mr. George had agreed upon would be used in Mr. Seng’s contract, or that in substance? A. Yes, sir.” This, he admits, was before any of the lumber was delivered. It will be seen that there is no dispute about appellant being notified of the contract with Seng and of Mr. George’s arrangement to substitute Seng for himself in the agreement with appellant. There is a conflict,’ however, in the evidence about what Kallemyn said in reply. E. T. George testifies that Kallemyn said; “It don’t matter much to me, just so I get my money; that is what I am interested in.” Kallemyn testifies that he said to George that when the lumber went out it would be charg’ed to him. This J. D. George denies. Nothing further was done or said in that regard. Seng built the house from lumber and material delivered to him or his workmen by the appellant; and it appears that George has paid Seng the full contract price, which included the judgment for $391.75. It will be seen that whether or not there was a novation depends upon what was said and done when George notified appellant of the substitution of Seng for himself and the conduct of the parties thereafter. J. D. George testified that the substitution seemed agreeable to Kallemyn. E. T. ’s testimony shows that Kallemyn answered the proposal of substitution ambiguously.. However, we cannot think there is much doubt that he must be held to have acquiesced in the proposal. He knew that, if George acted upon his contract with Seng, it would be irrevocable and George would be absolutely obligated by it. The proposal of substitution was squarely put up to him. Good faith and fair dealing required Kallemyn to take an unequivocal position. If, by his evasion or ambiguous response, Mr. George was induced to believe that the old contract was superseded by a new one which released him from the old, appellant should not now be permitted to stand upon the old, when George has performed the new. A creditor cannot have two different debtors on a single debt and [51]*51reserve a choice between them and exercise it to the injury of either. Circumstances may arise which require a man to speak directly and frankly, and this "instance was one of them. George testified that he had no doubt, from his talle with Kallemyn, that he was released from the old contract. Moreover, both parties acted upon the new contract substituting Seng, George by performing it, and appellant by delivery of the lumber and material to Seng. Our conclusion is that there was a complete novation and both parties thereto were released from the old contract. Counsel for appellant especially requested us to examine the case of Western White Bronze Co. v. Portrey, 50 Neb. 801, and we have done so. The case holds that there can be no novation of a debt in the absence of an unqualified discharge of the original debtor by the creditor. As we have already held that there was an unqualified discharge of George by the consent and conduct of the appellant, the case cited is not in conflict with this opinion. It follows, of course, that, the agreement between Mr. George and appellant having been abrogated, no personal judgment can be rendered against him.
We think that the judgment of the district court was right, and we recommend that it be affirmed.
Per Curiam.
For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed.
The following opinion on motion for rehearing was filed February 10, 1921. Former opinion modified and judgment of district court reversed.
1. Husband and Wife: Agency. A husband may act as the agent of his wife in contracting for materials to be used in the construction of a house upon property, the separate estate of his wife, and the question of agency is a question of fact, to be determined from the circumstances of each particular case.
[52]*522. Mechanics’ Liens: Lien on Wife’s Land: Contract by Husband. When it is shown that a husband and wife plan a home together, to be built upon the property of the wife, and that the wife draws the plans and shares in directing and controlling the undertaking, helps select the materials, frequently visits the building during the course of construction, to see that the plans are being carried out, the acts of the husband, in ordering materials in furtherance of the undertaking, held, to be binding upon the wife, and held to show sufficient authority from the wife to support a mechanic’s lien upon her property.
3. Contracts: Novation. An agreement, in order to result in a novation, must contain two stipulations, expressly stated or necessarily and clearly inferred from the terms used — one, to completely extinguish an existing liability, and the other, to substitute a new one in ’its place.
4. -: -: Burden of Proof. Whether the original debtor is completely released must be determined as a question of fact, depending upon the intention of the parties, and the burden of proof is upon the original debtor to show such release and novation, when he asserts it as a defense.