Rawlings v. Waddill. enterprise. Ray Allee's testimony does not support the contention that his father would enter into any enterprise on his father's own account. We take the statement of Ray Allee, a disinterested witness placed upon the stand by defendant, in preference to defendant's evidence as to this matter. As to defendant's testimony given at the same time that Ray Allee said to him, "I want to work this thing a little bit different," no matter of this kind is covered in Ray Allee's testimony; he was not asked in regard to it. As to what Ray Allee meant in making such a statement is not clear. There is nothing in the evidence to show what was meant unless it is taken in connection with defendant's evidence to the effect that Ray Allee told him that his father on his own account might advance the money for the proposition, which, as we have said, is not in accordance with Ray Allee's testimony. Of course, an inference might be drawn from defendant's testimony that Ray Allee told him that he was contemplating getting his father interested in the matter; that this was confidential information and "that he wanted to work this thing a little bit different," and that Ray Allee meant to infer that he also was going to attempt to get a commission out of plaintiff for interesting his father in the venture. Evidently this was the inference, even though it may seem far-fetched, that defendant attempted to make in his testimony, but no such inference may be drawn unless we accept defendant's entire statement in reference to the matter, which, as we have already stated, we do not. The facts in reference to the claim of $778.00 for interest paid by the defendant on money that he borrowed for the joint enterprise of himself and plaintiff are as follows: Plaintiff testified that defendant was to furnish $18,000 and it was agreed that he was to receive "one per cent on each one thousand dollars, one per cent of the profits to one thousand dollars" advanced; that it was not agreed that any interest should be paid on said $18,000. A contract signed by plaintiff, defend Huff v. Doerr. ant and some others, recites that "said Waddill in consideration of furnishing $18,000 for so financing such transaction should have and receive 18 per was procured from two different parties and it was the understanding that the one per cent of the profits was to go to these persons for advancing the money, and that he was entitled to interest that he paid on such money. He further testified that the attorney, who drew the contract last mentioned suggested that defendant's name be inserted as the one furnishing the $18,000 as a matter of convenience. The attorney testified that he did not remember any such statement alleged to have been made by him. The evidence is so evenly balanced on this item that we defer to the conclusion of the chancellor who tried the case in reference to the matter. [Walker v.Dobbins & Central Trust Co., 152 Mo. App. 270, 274; Vessar v. Neff, 124 S. W. 185.] The judgment is affirmed. All concur. JOHN W. HUFF, Respondent, v. ETTA DOERR, Appellant. Kansas City Court of Appeals, February 7, 1921. 1. EVIDENCE: Parol Evidence Admissible to Show Who Principal was Under Simple Contract. Where the evidence showed defendant's husband signed contract as her agent, and the body of con tract was in name of principal, although not signed by her, it was permissible to show by parol evidence who the real principal was. 2. HUSBAND AND WIFE: Principal and Agent: Husband's Authority to Execute Contract as Agent of Wife, Held Jury Question. Evidence held sufficient for jury to determine question of the husband's authority to execute contract on behalf of wife, although such authority was denied both by her and her husband. Huff v. Doerr. 3. CONTRACTS, Indivisible: Joint and Several: Defendant Liable in Entirety Under Contract for Work Done Adjoining Owner, Though not Signed by Her. Where the contract fixed a specified sum as compensation for one entire piece of work, that is, the building of a stone wall fronting property of both defendant and adjoining owner, and it was the intention to have both properties improved alike, the work done being a benefit to both properties, such contract was an indivisible contract, and if it had been signed would have been a joint and several contract under section 2155, Revised Statutes 1919, and plaintiff could have sued either defendant or adjoining landowner for entire consideration. 4. INSTRUCTIONS: Instruction Covering Entire Case Held Not to Take all Issues from Jury. An instruction requiring jury to find that contract was executed with approval of defendant, and that the work was done in a workmanlike manner in pursuance of said contract, and to allow plaintiff only such sum as was agreed upon thereunder, held not to take every issue from jury, except the amounts to be paid for various items of work. 5. APPEAL AND ERROR: Where all Matters in Reference to Point Raised Do Not Appear in Abstract the Point Cannot be Considered. Where it is contended that plaintiff's own evidence showed he was overpaid for work, based upon figures taken from account book, a leaf thereof which contained same having been torn out or misplaced at former trial, and it also appeared that said book showed another matter in regard to the account, not in the original abstract, such contention cannot be considered because the defendant should have abstracted all matters in reference to point raised. Appeal from the Circuit Court of Jackson County.Hon. Clarence A. Burney, Judge. AFFIRMED. Goodwin Creason for respondent. W. Rea Heath for appellant. BLAND, J.—This suit, which arose in a justice court, is for the balance due on various contracts had between plaintiff and defendant. There was a verdict and judgment in plaintiff's favor for $375 and defendant has appealed. Huff v. Doerr. The facts show that defendant and Mrs. Finley owned about 1200 feet of ground fronting on Prospect Avenue between 60th and 62d Street in Kansas City, Missouri; defendant owned the south half of the ground and Mrs. Finley owned the north half. Defendant's husband was in charge of Mrs. Finley's property and carried on verbal negotiations with plaintiff as agent for the building of a wall in front of both tracts and to level the ground to the street grade. A written contract was drawn which recited that it was entered into between defendant and Eva Finley, parties of the first part, and plaintiff as party of the second part; that the parties of the first part employed plaintiff to build a stone wall "running from the northwest corner of 62nd Street and Prospect Avenue north on the west side of Prospect Avenue 1200 feet" and also to build a wall running from the corner of 62nd street and Prospect Avenue west 25 feet. The height, thickness and kind of walls and materials to be used were specified. The contract closed as follows: "In consideration of the above, the said parties of the first part agree to pay said second party the sum of $800.00, etc. It is admitted by the defendant that the purpose of the proposed written contract was that the two properties should be improved alike. The contract was not signed by Mrs. Finley and no reason appears for her failure to sign it although plaintiff presented it to her for her signature. The contract was signed by defendant's husband in his own name but at defendant's direction. After the work was commenced defendant contracted with plaintiff to build a swimming pool, steps, extra wall, porch, for sodding and for some other things. Each one of these items was done under a different contract for a specified sum of money. The evidence shows that plaintiff fully performed all of his contracts and that there was a balance due him somewhat in excess of the amount of the verdict. It is insisted that the court should have sustained defendant's demurrer to the evidence for the reason that Huff v. Doerr. the contract was not executed by the defendant. It is true that the contract is signed by defendant's husband personally and there is nothing in the signature to indicate that he was acting as agent. However, it is always permissible where simple contracts are involved to show by parol evidence who is the real principal. [Sparks v. The Dispatch Transfer Co., 104 Mo. 531, 547, 548; Jones v. Williams, 139 Mo. 1, 23.] There was ample evidence to show that defendant's husband signed the contract as her agent. The contract itself recites that it was being made between defendant, Mrs. Finley and plaintiff. It is stated in 2 C. J. p. 672 "If the body of the instrument is in the name of the principal, or clearly shows an intention to bind him, the form of the signature is immaterial; it is sufficient. if the signature is that of the agent acting as agent. In such a case the principal is bound" if the signature is "in the name of the agent alone;" There was evidence in this case that although the negotiations for the building of the wall were carried on between defendant's husband and plaintiff, at the time the written contract was drawn up these two took the matter up with the defendant and the latter and her husband looked over the contract and defendant told her husband to go ahead and sign it, "it was all right." She then told defendant to "sign it and to go ahead with it and she would pay for it." There was further evidence that defendant was present while at least a part of the work was in progress; that she ordered various changes made, and that the work was paid for by checks drawn on her bank account by her husband. As already stated, half of the land belonged to her. We think that under these circumstances there is no question but that there was sufficient evidence to go to the jury on the question of the husband's authority to execute the contract on behalf of his wife, although this authority was denied both by her and her husband. [Berkshire v. Holcker, 202 Mo. App. 433, 439, 440.] |