Pickens v. Plattsmouth Inv. Co. were there because he sent down for me just about the time I was going to file my lien and tried to compromise the thing with me in some way. The confusion which existed in the mind of Mr. Pickens as to the name of the exact party for whom he was erecting this building, from the foregoing evidence, will seem pardonable. In the first place, the Plattsmouth Land & Improvement Company, the holder of the legal title, contracted to sell a portion of the real property to the Plattsmouth Investment Company, which latter company having taken possession of the property with a view of erecting improvements thereon and booming it, contracted with Pickens to erect the Park House. Dr. Hertzman and Dr. Mercer occupied the same office. When Mr. Pickens visited this office, Dr. Mercer, who at that time was president of the Plattsmouth Land & Improvement Company, handed to Mr. Pickens the plans and specifications for the erection of the Park House, and seems to have spoken of the building about to be erected in such terms as would naturally lead Mr. Pickens to infer that the work was to be performed for the Plattsmouth Land & Improvement Company. It is true the written contract, when formulated for the signature of Mr. Pickens, recognizes only the Plattsmouth Investment Company as the party with whom he was to contract. This company had possession of the property; has advanced at some time $1,100 for the purchase of it. Its interest has not yet been foreclosed, though the testimony of Dr. Hertzman, its secretary, is that the rights of the investment company have been forfeited. It seems to us upon a review of all the facts in this case, that the conclusion is unavoidable, that these companies were engaged in a joint enterprise, to-wit: the booming of this property; that in furtherance of the interest of both parties this contract was made for the erection of the Park House by the Plattsmouth Investment Company, as well as by the Plattsmouth Land & Improve Pickens v. Plattsmouth Inv. Co. ment Company. Just who the written contract was made with is not determinative of these facts. Both these companies interested in the ownership of the property were parties to the contract, at least by their conduct led Mr. Pickens to believe that such was the fact. The principle governing in such cases is stated and enforced by NORVAL, J., in Bohn Mfg. Co. v. Kountze, 30 Neb., 719. The syllabus of that case which was prepared by the writer of the opinion was as follows: "In a contract for the sale of land it was stipulated that the purchaser should erect a dwelling upon the premises within a stated time. The building was erected but the labor performed and material furnished were not fully paid for. Held, in an action to foreclose a mechanic's lien, that the liens of the mechanic and materialman have priority over the lien of the vendor for unpaid purchase money." Discussing the facts of that case as governed by the statute giving a mechanic's lien, Judge NORVAL in his opinion said: "The contract of sale in the case at bar not only authorized but made it obligatory upon the purchaser to erect a dwelling on the premises, of a certain value, within a fixed time. Further than that Kountze stipulated to furnish not to exceed $2,200 towards the erection of the building. The proof shows that Kountze advanced that amount and more, and that he approved the expenditure of the money. This is additional proof of the authority of the vendee to contract for the erection of the house. Kountze having in the contract of sale authorized his vendee to make the improvements, and in pursuance of that authority, Berlin procured the labor to be performed and the materials to be furnished, the vendor thereby subjected his lien for the unpaid purchase money to the liens that might be acquired by the laborer and material-man for making the improvement. Where a vendee, owning the equitable title, contracts for the erection of a building upon the express authority of the owner of the legal title, it is but just that the lien of the mechanic should attach to the interest Pickens v. Plattsmouth Inv. Co. of both vendor and vendee in the premises, and be paramount to the lien of the vendor. And this rule does not in any manner contravene any statutory provision." In other words, section 1 of the mechanics' lien law, having provided that any person who shall perform any labor or furnish any material for the erection of any house by virtue of a contract, express or implied, with the owner thereof, or his agent, shall have a lien to secure the payment upon such house and the lot of land upon which the same stands, is to be liberally and fairly construed. The owner of the lot, Kountze, having stipulated that improvements of a certain kind should be made thereon, by one who held his agreement upon certain payments being fully made to convey, constituted the vendee his agent for the erection of the building required by said contract. The sale of the material and furnishing of the labor were under a contract with the agent of the owner whose authority was to make the improvement required. Kountze did not actually assist in making a contract for the purchase of the material, and for securing performance of the necessary labor. He entered into such a contract as required another to do this, however, whereby that other was in fact his agent, either for the improvement of the property legiti mately, or by overreaching the material-man and laborer through misleading appearances. The law imputes the more honorable motive and holds the implied agency an honorable one. Wherefore it results from the statute that the right to a mechanic's lien arose as against the interest, not only of the vendor, but of the vendee as well. By this it was not held that where the owner of the land sells it and simply takes back a mortgage for the purchase price without in any way becoming a party to a contract for the erection of improvements, that one who furnishes materials or labor upon a contract with the vendee alone can assert thereon a lien superior to that of the said mortgage duly recorded. Quite to the contrary it has been recently held by Pickens v. Plattsmouth Inv. Co. this court in Henry & Coatsworth Co. v. Fisherdick, 37 Neb., 207, where one furnished money to build a house for which he took a mortgage upon the premises whereon the erection was to be made, that the record of such mortgage gave a priority to the rights of material-men and mechanics who began to confer value upon the mortgaged property after the record of the mortgage. To subject a vendor's rights in the subject-matter of the sale to the claim of mechanic's lienor, it must appear that, with respect to the value conferred by the labor or material of such lienor, there was a privity of contract through the vendee between the vendor and such lienor. This privity will not be implied from the mere fact that the mechanic's lienor, upon the faith of a contract between himself and such vendee, furnished labor or material. It must be established by the proofs, or as fairly inferable from the facts as any other independent fact or proposition. As between the appellee Pickens and the Plattsmouth Land & Improvement Company there were sufficient proofs to justify the district court in finding that the Plattsmouth Investment Company was the agent of its vendor for procuring the erection of the Park House upon the premises; or that court might properly have found from the evidence that the Plattsmouth Land & Improvement Company was a party to the contract for the erection of said house, and on either theory the decree should stand. The judgment of the district court is AFFIRMED. THE other commissioners concur. Baldwin v. Douglas County. JAMES H. BALDWIN V. DOUGLAS COUNTY. FILED JUNE 29, 1893. No. 5013 Constitutional Law: LIABILITY OF HUSBAND TO COUNTY FOR SUPPORT OF INSANE WIFE. The provision of the statute authorizing suit to be maintained against the party legally bound for the support of an insane person, by the county which has paid for the care, board, and treatment of such insane person at the insane hospital of this state, upon the finding of such insanity by the commissioners of said county, is in conflict with section 1, article 9, of the constitution of Nebraska, and is therefore inoperative and void. ERROR from the district court of Douglas county. Tried below before TIFFANY, J. Connell & Ives and John Q. Burgner, for plaintiff' in error. T. J. Mahoney, contra. RYAN, C. The defendant in error, as plaintiff in the district court of Douglas county, filed its petition against the plaintiff in error, as defendant, on the 23d day of July, 1889, containing, in addition to proper allegations of its own corporate existence, the following material averments: That on May 26, 1876, and ever since, the defendant was, and has been, the husband of Mary M. Baldwin and legally liable for her support and maintenance; that on said last named date Mary M. Baldwin, having a legal settlement in said Douglas county, Nebraska, and being adjudged insane by the board of commissioners of insanity of said county, was committed to the Nebraska state insane asylum, and that ever since said date she has been insane and continued an inmate of said asylum at the cost and expense of said Douglas county; that said county has been compelled to |