The instructions were erroneous. Under Code, section 3559, providing that the petition may contain more than one cause of action, each stated wholly in a count or division by itself, it has uniformly been held that the same cause of action may be pleaded in differ-
The facts of the case before us furnish a good illustration of this rule. If in the conversation between plaintiff and defendant the written memorandum of contract which had been drawn up by plaintiff and submitted to defendant was in fact signed by defendant either by his own hand or by direction to plaintiff to affix defendant’s name thereto, then this written memorandum became conclusive as to the terms of the agreement between the parties because it was by their own act made the evidence of such terms; but, if defendant did not sign or authorize the signing of his name
Something is said also in appellee’s argument in regard to the invalidity of the contract on the ground that the premises constitute defendant’s homestead, and a contract with reference thereto in which his wife did not join would not be valid. Counsel do not call attention to any evidence in the record indicating that the premises constituted a homestead, and no such question was raised during the course of the trial.
The conclusion we reach in the case renders it unnecessary to pass upon appellant’s motion to strike appellee’s additional abstract from the files.
For the errors pointed out, the judgment is reversed.