54 P. 886 | Or. | 1898
delivered the opinion.
This is an action by Louise W. Mullaney against R. T. Evans, A. S. Evans, and H. Curtner, co-partners as Evans & Curtner, to recover the sum of $1,670, the balance due on account of the alleged sale and delivery of a quantity of hay by plaintiff to defendants. The de
It is contended by defendants’ counsel that their clients entered into an agreemexit' with plaintiff’s agexxt, E. F. Mullaney, which they have so kept and performed as to preclude him from maintaining an action for the recovery of the balance claimed to be due, and that, such contract having been consummated with plaintiff’s knowledge, her right of actioxi thereon is also barx’ed. The contract in question purports to have been entered into between Evans & Curtner, parties of the first part, and E. F. Mullaney, the party of the second part; but the name of one Frank Maxey is subscribed thereto with the party of the second part, but the instrument contaixxs no recital of any authority by which the latter appended his signature. The manner of execxxting the contract, however, is unimportant, for plaintiff, by bringing an action for the balance due thereunder, and defendants by accepting the hay, and paying E. F. Mullaney apart of the purchase price, each with full knowledge of the transaction, have thereby ratified the agreemexxt, notwithstanding their respective agexxts may have acted without authority : Argenti v. Brannan, 5 Cal. 351; McDonald v. Mining Co., 13 Cal. 220. Parol testimony is inadmissible to discharge Mullaney, if he executed the contract for plaintiff without disclosing his principal to the defendants, in which case they have the right to elect whether they will hold him or his wife to a pex*formance of the agreement: Barbre v. Goodale, 28 Or. 465 (38 Pac. 67, and 43 Pac. 378). But the hay agreed to be sold having been delivered to defendants, in pursuance of the contract, plaintiff, by its ratification, has fully complied with all the terms imposed upon her, whereupon it devolved upon defendants to keep their engagements by paying the amount agreed upoxx; and
With these preliminary observations, we will examine the errors relied upon to secure a reversal of the judgment. Plaintiff, appearing as a witness in her own behalf, testified, in substance, that she sold the hay to defendants, and that the contract evidencing the transfer thereof was reduced to writing ; whereupon her counsel asked the following question : ‘ ‘ Did you sign any contract in writing, Mrs. Mullaney?” This question was objected to on the ground that it was incompetent, irrelevant, and immaterial, and because the evidence showed that the agreement was signed for her, and with her knowledge. The objection being overruled, and an ex
This witness, over defendants’ objection and exception, was allowed to answer the following question : ‘1 Mrs. Mullaney, you may state whether or not the defendants paid you any money for that hay, and, if so, how much, and when? ” To which she replied, “ They paid me $625 on hay.” It is insisted that this question and the answer thereto furnished a method of proving by parol the non-performance of a written contract, without having established by proper legal proof any liability of t; defendants to pay under the agreement. Defendants, by their answer, admitted that they made the contract in question, and this averment established their liability. They also alleged that $1,670 was the balance due on account of the purchase of the hay, and this admission showed that a payment of the amount so testified to by plaintiff had been made by them, but they maintain, however, that this payment was made to E. F. Mullaney, while plaintiff insists on this money having been paid to her through her husband on account of her alleged sale. The real question in the case is, to whom was the admitted balance payable? Under the allegations of the complaint and reply, we think the testimony admissible as tending to establish plaintiff’s theory of the case, even if the money so received was paid by defendants to her husband.
The contract having been identified by plaintiff, she was permitted, over defendants’ objection and exception, to answer the following question in relation to the per
E. F. Mullaney, being called as a witness for plaintiff, testified in relation to the sale of the hay by his wife, whereupon he was asked'the following question : “Whose hay was it that she sold, Mr. Mullaney ?” and over defendants’ objection and exception he was permitted to answer, “ Mrs. Mullaney’s.” It is insisted that, as the contract was in writing, and signed by Mullaney, it is unimportant whether the hay was owned by him or his wife, and hence this question was immaterial, and tended to mislead the jury to defendants’ prejudice. The point contended for might, perhaps, be well taken if this were an action by defendants against Mullaney to recover damages resulting from a breach of his agreement to deliver the hay; but plaintiff’s right of action being predicted on her alleged ownership, the question was important, and the answer thereto material.
The court having charged the jury to the effect that if defendants, when they made their answer to the notice of garnishment, knew or had reason to believe that plaintiff owned the hay, or claimed the balance due thereon, it was incumbent upon them to have so stated the fact; but, if they neglected so to certify, they were not protected by the judgment rendered against E. E. Mullaney,
After the court had fully instructed the jury upon the questions of law applicable to the case at bar, it gave, at defendants’ request, certain instructions which appear to
Defendants objected to other instructions given by the court on its own motion or at plaintiff’s request, but, in view of what has been said herein, we deem the exceptions to be without merit. It follows that the judgment is affirmed.
Affirmed.