On Petition for Rehearing.
Comstock, J. —Upon the petition for rehearing, we have again examined the record in this cause and find no error in the rulings of the trial court for which the judgment should be reversed.
Counsel for appellant, in his brief in support of the petition, says, “that the issue as presented in the lower court for trial on the first paragraph of the complaint, was, whether the husband was acting as the agent of the wife in the purchase of this lumber, and the issue *548presented by the second paragraph was whether or not Mrs. Stoner would not be estopped from denying her liability for the payment of this bill after she had made her promise to pay the bill, if Mr. Russell would not file a lien upon the property.”
The first, second, and third causes for a new trial were based upon the claim that the judgment was contrary to the law and the evidence, and not sustained by the evidence. In holding that the judgment was sustained by the law and evidence in the original opinion, the question presented by the second paragraph was necessarily passed upon and not overlooked, as assumed* by appellant’s counsel. There was no evidence before the trial court that the appellee, Anna M. Stoner, promised to pay the bill if the appellant would not file a notice of his intention to hold the lien upon her property, nor is there any evidence that Mr. Russell did not file a lien because he relied upon a promise of-the appellee to pay. There was, therefore, an entire failure of proof upon that issue.
This action was not to enforce a lien, but it was a suit to recover for the sale of lumber. It is not claimed that it was purchased by the appellee, Anna, M. Stoner, in person. She testified that she did not authorize or know of its purchase until after it was bought. Her husband testified that he purchased it on his own account, and that it was charged to him.
Appellant did not deny that it was ordered by the husband and charged to him. Counsel insist that the court erred in sustaining an objection to a question in answer to which he expected to prove that there was no contract between Mrs. Stoner and her husband for the erection of the house. In view of the evidence of the purchase of the lumber by the husband on his own account, this fact, if proved, would not have rendered the wife liable. Petition overruled.