Kirschbon v. Bonzel

(1) Agency: Sealed contract in agent's own name: Liability of real principal. (%J Evidence as to real principal: Husband and wife. (8) New trial: Amendment of pleading: Discretion. 1. When, a person makes a written contract in his own name but in fact as the agent of another, whether under seal or not, if a seal is not essential to its validity, the other contracting party may show the fact of agency and may enforce the contract against the principal. 2. Evidence of the acts and doings of a married woman in respect to a house while it was being erected, is admissible upon the issue whether she or her husband was the contracting party in relation thereto. 3. A refusal of the trial court to open a case for further defenses after the decision was announced, is held not an abuse of discretion where the defendants, knowing the existence of such defenses, neglected to plead them, and no satisfactory reasons were given for such neglect.

APPEAL from the Circuit Court for Milwomk.ee County. This action was brought to enforce a statutory-lien for an unpaid balance of the price and value of certain materials furnished and labor performed by the plaintiffs in the erection of a house upon a specified lot in the city of Milwaukee, owned by the defendant Catherine Bonzel, upon which lot the lien is claimed. The petition for a lien and the original complaint allege that the materials were furnished and the labor done under a contract with the defendant Catherine. ’She denied the allegation, and maintains that the plaintiffs made the contract with her husband, who alone is bound by it. This was the principal issue litigated on the trial. The plaintiffs’ testimony tended to show that they contracted with the defendant Catherine to build the house, and that she authorized her husband to enter into a written contract for her in that behalf, which he accordingly did. The writing was produced. On its face it purports to have been made by the plaintiffs and the defendant husband. They alone signed it, and the name of the wife does not appear therein. Both defendants testified that the wife was not a party to the contract. The circuit court found that it was her’ contract, and that her husband executed it for her, as her agent. The court allowed much testimony to be given showing the acts and conduct of the defendant Catherine w-hile the house was being erected, in respect thereto. At the close of the trial, the plaintiffs were permitted to amend their complaint by adding thereto allegations of such acts and conduct on her part. When the contract was made, the defendant husband held a contract in his own name for the purchase of the lot on which the house was erected. Two or three weeks later, and soon after the erection of the house had been commenced, he assigned the contract to his wife, who, before the building was completed, obtained a conveyance of the lot, and is the owner thereof. After the court had announced what the findings and judgment would be, both defendants moved for a new trial and for leave to interpose further answers, alleging that the plaintiffs did hot perform their contract according to its terms and that they had been paid a sum of money on the contract not admitted by them on the trial. The court refused to open the case, and filed its findings of fact and conclusions of law, upon which a judgment in the usual form, enforcing the lien claimed, was duly entered. In addition to the finding that the contract in question was the contract of the defendant Catherine, the court found that the allegations in the amended complaint of various acts and doings of the latter were true. The defendant Catherine appeals from the judgment.