Union Paving & Contract Co. v. Mowry

HARRISON, J. The plaintiff brought this action to recover for the labor done in paving with bituminous rock a. [7]portion of a public street under a contract between the defendant and one Reed, and by him assigned to the plaintiff. The execution of the contract, as well as its performance by the plaintiff, was denied by the defendant. The cause was tried by a jury and a verdict rendered in favor of the plaintiff. From the judgment entered thereon, and from an order denying a new trial, the defendant has appealed.

1. The contract on the part of the defendant was signed, ‘ ‘ Ellen M. Mowry, by Chas. Alpers. ’ ’ There was no evidence that Alpers had express authority from her to sign the contract, but evidence was presented to the jury which the plaintiff claimed created an ostensible agency, and showed that he had implied authority to sign the contract. It was shown that Alpers had been residing in the same house with the defendant and her mother for many years, during which time he had been accustomed to take part in making contracts in her behalf for street work; that several contracts for doing street work in front of or adjacent to the property of the defendant had been made in her behalf; and that, with two exceptions, all of these contracts had been made by Alpers, and signed by him in the same manner as was the present one. Mr. Reed, the plaintiff’s assignor, testified that several of these contracts had been made with him, and that all of the business that he had transacted in regard thereto for the property of the defendant had been with Mr. Alpers; that he had had several conversations with her about street work, and that she then referred him to her mother or to Mr. Alpers, saying that these matters were all fixed or arranged by Mr. Alpers; that for one of these contracts the defendant had given him her notes; and that the same were afterward paid by Alpers. It was also shown that, at the same time that the contract in question was made, another contract on her behalf for street work upon an adjacent block was made with Mr. Reed,'and signed by Alpers in the same manner as the one in suit; that at that time Reed made a “side agreement” with her respecting the time for doing the work and the payment therefor, and delivered the same to Alpers; that, the work named in the other contract not having been completed, the defendant some months afterward recognized the validity of this contract by send[8]