Straus v. Eaton

CONREY, P. J.

On the first day of August, 1914, one A. Y. Bunsmoor was the owner of a newspaper route of the

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“Los Angeles Daily Times” covering certain territory in Glendale, California. The complaint alleges that on that day Dunsmoor entered into an agreement with defendant Eaton. By the terms of that agreement, as shown in the complaint, Dunsmoor leased to Eaton the described territory of the city carrier service of the “Los Angeles Times,” for a period of two years from the date of the writing, August 1, 1914. This writing was signed by the defendant J. B. Eaton, and also was signed, “A. V. Dunsmoor, By Anna A. Dunsmoor,” but was not signed by A. V. Dunsmoor. On the same day, defendant Eaton as principal and the other two defendants as sureties executed to A. V. Dunsmoor a bond in the sum of $1,000, conditioned for the performance by Eaton of the terms of said contract. In the alleged contract it was provided that Dunsmoor would furnish papers to E'aton and that Eaton would pay Dunsmoor therefor at the rate of $1.40 per hundred copies. This action was brought to recover an unpaid balance alleged to be due for papers delivered to Eaton under that contract. Judgment was entered against the defendants in the sum of $924.35. On motion for new trial, the court ordered that the motion be granted, unless the plaintiff consented to a reduction of the amount of the judgment to the sum of $716.89. The plaintiff filed written consent to such reduction. The defendants appeal from the judgment.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and on account of sundry uncertainties in the complaint, including the point that the complaint did not show the number of copies of the newspaper that were received by Eaton from Dunsmoor for service on the route mentioned in the complaint. These demurrers were overruled.

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Appellants claim that the purported contract was invalid, because it was not signed by A. Y. Dunsmoor, nor by any person having written authorization from him. (Civ. Code, sec. 1624, subd. 1, and see. 2309.) It is true that in the complaint it was not alleged that Anna A. Dunsmoor had received any authority in writing from A. Y. Duns-moor to enter into a contract for him or in his name. And at the trial of the action the only attempt on the part of the plaintiff to establish such agency is found in the testimony of Mrs. Dunsmoor that she is the wife of A. Y. Duns-