On Motion for Rehearing.
Mrs. McCurdy, in her motion for rehearing, complains of the hardship worked upon her by reason of our holding that she should have pleaded the statute of frauds. She had every opportunity in the trial court of making such plea, but as it was apparently her purpose to make the Bonding Company pay for the verbal promises made by her through Heldenfels, she refrained from pleading such statute. She did not offer to let the Bonding Company fight her case against the interveners, and thus give the company, which she proposed to hold liable for such judgments as might be rendered against her, an opportunity to prepare the pleadings in her behalf and conduct the case as it saw fit. On the contrary, she elected to make her own defenses, and, as stated in our former opinion, so far as a defense which is merely a personal privilege is concerned, we do not think the Bonding Company had the legal right to demand that it be pleaded. We therefore took the view that the Bonding Company’s contentions with respect to the statute of frauds would have to be overruled. Mrs. McCurdy elected to stand or fall by the assignments of error presented by the Bonding Company, and is in no position to complain. The contention is made that the case should be reversed as to all in-terveners so she would have an opportunity to amend her pleadings and urge the statute of frauds.
[7] If the judgment of the court is correct, although for a different reason than the one stated by the court, it should be affirmed. If the judgment is incorrect, it should be reversed and the cause remanded, except in the exceptional eases in which a rendition is authorized.
[8, 9] Much is said in the motion about Heldenfels being the agent of Franks in making the promise that the McCurdy estate would pay, not only future wages and claims, but also those already accrued. The trial court, as is shown by paragraph 15 of his findings of facts, found that Heldenfels was appointed agent by McCurdy in all matters relating to the construction of the building, and that he continued to act as such agent under authority from Mrs. McCurdy after McCurdy’s death. This finding is supported by the evidence, and was not excepted to by Mrs. McCurdy. The court found, as shown by paragraphs 17 and 18 of his findings of fact, that Heldenfels promised the interveners whose judgments were permitted to stand that plaintiff would pay their claims then accrued and to accrue. He made this promise as agent of Mrs. McCurdy, of course. It is doubtless true that in his capacity as agent of Franks for certain purposes, if he was such agent, he highly .approved of the contract which he made with said interveners as agent of Mrs. McCurdy. But, as he could not contract with himself, such approval could not deprive Franks of any rights, much less the Bonding Company, which had the right to insist that Mrs. McCurdy and Franks should not change the contract. While the record fails to show that Franks invested Heldenfels with any power to change the contract, if Heldenfels instead of doing an act in behalf of the owner not authorized by the contract, in his double capacity could have changed the contract so as to authorize the owner to fix his claim against the contractor by simply promising to pay all debts regardless of whether they became liens or not, then the Bonding Company would be released by such material change in the contract.
It is also contended that the promises upon which this court permitted certain of the judgments to stand were conditional, in that Heldenfels only promised to pay, provided liens were filed. We had reference to the promises made before the house was completed, which were not conditional and were pleaded arid fully established by Heldenfels’ testimony. The conditional promises referred to in the motion for rehearing related to the balances due after apportioning the fund. When all the testimony of Heldenfels is considered, it is apparent that he testified he made unconditional promises about August 17th, which were based upon his authority from Mrs. McCurdy, hereinbefore mentioned. And the trial court so found, as is fully set out in the seventeenth and eighteenth findings of fact, to which Mrs. McCurdy filed no exception. It is true that when the fund on hand was distributed in September, Held-enfels made conditional promises to pay the balance due, which promises were authorized to be made by the attorney for the McCurdy estate, but these promises were ignored by the trial court and this court.
The motion for rehearing is overruled.